Bethel Oil & Gas, L.L.C. v. Redbird Dev., L.L.C.

2024 Ohio 5285, 258 N.E.3d 470

• Court: Ohio Court of Appeals
• Decided: October 23, 2024
• Docket: 23CA5
• Status: Published

Opinion

[Cite as Bethel Oil & Gas, L.L.C. v. Redbird Dev., L.L.C., 2024-Ohio-5285.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY

BETHEL OIL AND GAS, LLC, : et al., : Plaintiffs-Appellants, Case No. 23CA5 : v. : REDBIRD DEVELOPMENT, LLC, et al., : DECISION AND JUDGMENT ENTRY

Defendants-Appellees. : ________________________________________________________________

APPEARANCES:

J. Zachary Zatezalo, Moundsville, West Virginia, for appellants.

Clay K. Keller and Andrew N. Schock, Akron, Ohio, for appellees Redbird Development, LLC, Dean Patrick Decker, III, and Hall Drilling.

Steven B. Silverman, Pittsburgh, Pennsylvania, and Matthew S. Casto, West Virginia, for appellees Diversified Production LLC, Nuverra Environmental Solutions, Inc., and Heckmann Water Resources (cvr), Inc.

Brandon Abshier and Steven A. Change, Columbus, Ohio, for appellees Deeprock Disposal Solutions, LLC, Deeprock Disposal Operating LLC, Brian Chavez, and Christyann Heinrich-Chavez.

Chad R. Ziepfel, W. Stuart Dornette, and William E. Braff, Cincinnati, Ohio, for appellees Tallgrass Operations LLC and K&H Partners LLC.

Jeffrey L. Finley, Gallipolis, Ohio, for appellees J.D. Drilling Co. and James E. Diddle. ________________________________________________________________ CIVIL APPEAL FROM COMMON PLEAS COURT WASHINGTON, 23CA5

2 DATE JOURNALIZED:10-23-24 ABELE, J.

{¶1} This is an appeal from a Washington County Common

Pleas Court judgment that dismissed the complaint filed by (1)

Bethel Oil and Gas, LLC, (2) Robert E. Lane, and (3) Sandra K.

Lane, plaintiffs below and appellants herein. Appellants assign

the following errors for review:

FIRST ASSIGNMENT OF ERROR:

“THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DISMISSING THE PLAINTIFFS’ CASE ON THE PLEADINGS WHERE THE PLAINTIFFS CREDIBLY ALLEGED THAT THE DEFENDANTS’ LARGE-VOLUME, HIGH-PRESSURE, WA[S]TE-FLUID INJECTION OPERATIONS HAVE COLLECTIVELY CAUSED FLOODING DAMAGE TO THE DEVELOPMENT OF PLAINTIFFS’ MINERAL ESTATE.”

SECOND ASSIGNMENT OF ERROR:

“THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY REFUSING PLAINTIFFS LEAVE TO AMEND THEIR COMPLAINT WHERE THE ALLEGATIONS PLAINLY GAVE RISE TO COGNIZABLE CLAIMS FOR DAMAGES.”

{¶2} In May 2022, appellants filed a complaint that alleged

16 defendants’ waste-fluid injection operations have caused

toxic waste to migrate to appellants’ property. Appellants

averred that this toxic waste extensively and permanently

damaged their property. The complaint named the following WASHINGTON, 23CA5

3 defendants: (1) Redbird Development, LLC; (2) Dean Patrick

Decker III; (3) Hall Drilling, LLC; (4) Deeprock Operating

Solutions, LLC; (5) Deeprock Disposal Solutions, LLC; (6)

Fountain Quail Drilling, LLC; (7) Brian Chavez; (8) Christyann

Heinrich-Chavez; (9) J.D. Drilling Company; (10) James E.

Diddle; (11) K&H Partners, LLC; (12) Tallgrass Operations, LLC;

(13) Reliable Enterprises, Inc.; (14) Diversified Production,

LLC; (15) Heckmann Water Resources (cvr), Inc.; and (16) Nuverra

Environmental Solutions, Inc.1

{¶3} The Lanes reside in, and own property in, Washington

County. Mr. Lane is the owner, operator, and President of

Bethel Oil and Gas, LLC (Bethel), a gas and oil-drilling

production company that has gas and oil reservoirs in Washington

and Athens counties. Bethel operates on property that

1 This appeal involves 14 of the 16 defendants named in the complaint and those 14 defendants form five groups: (1) Redbird (Redbird Development, LLC, Dean Patrick Decker III, and Hall Drilling, LLC); (2) Tallgrass (Tallgrass Operations, LLC and K&H Partners, LLC) (3) Deeprock (Deeprock Operating Solutions, LLC, Deeprock Disposal Solutions, LLC, Brian Chavez, and Christyann Heinrich-Chavez); (4) Diversified (Diversified Production, LLC, Heckmann Water Resources (cvr), Inc., and Nuverra Environmental Solutions, Inc.); and (5) JDDC (J.D. Drilling Company and James E. Diddle). This opinion uses “appellees” collectively to mean these five groups of defendants. WASHINGTON, 23CA5

4 “[appellants] have an exclusive and absolute ownership interest

in the right to develop and produce gas and oil from or beneath

[appellants’] property to the deepest possible depths of Ohio’s

gas and oil reservoirs.”

{¶4} Appellants further possess “absolute and exclusive

ownership interest in the right to drill, develop, and produce

the gas and oil reservoirs, covering approximately 1,471 acres

in Washington County, Ohio and 2,317 acres in Athens County,

Ohio,” and they also have “an ownership interest in the

equipment, business infrastructure, and manpower to commercially

develop gas and oil.” Bethel “has drilled, owned and/or

operated a number of subsurface gas and oil wells in the Berea

Sandstone Formation reservoirs in” Washington and Athens

counties.

{¶5} The 16 defendants engage in fracking operations.

Fracking produces “residual waste fluids” that contain “various

salts” and “toxic substances that intermix underground,

including but not limited to metals (e.g., barium, manganese,

iron, and strontium), benzene, toluene, ethylbenzene, xylenes,

oil, grease, radioactive materials (including radium), fracking

additives and/or chemicals, and chemical transformation WASHINGTON, 23CA5

5 products.” Additionally, these residual waste fluids can

“become contaminated with other chemicals commonly used in

hydro-fracking operations including but not limited to diesel

fuel, hydrocarbons, barite, pesticides, surfactants, and

defoaming agents.” Fracking “operations result in the creation

of significant volumes of waste fluid.” Ohio law regulates the

disposal of this waste fluid and requires that the waste fluid

“be particularly disposed of in strict accordance with the Ohio

Revised Code, the Ohio Administrative Code, and the laws of Ohio

generally.”

{¶6} Each appellee owns, operates, “and/or” manages “one or

more” injections wells “in Washington County, Ohio and/or Athens

County, Ohio” “to accept, handle, inject, deposit, accumulate,

manage, store, and/or possess waste fluids including those

generated as a consequence of regional, hydraulic fracturing

operations.” Redbird operates Redbird #4 and Redbird #5.

Deeprock operates American Growers 1 and Heinrich Unit 1. JDDC

operates George & Clara Conroy 1 and Earl & Ellen Showalter.

Tallgrass operates K&H Partners LLC 1 and K&H Partners LLC 2.

Diversified operates Hattie L Flower and Nichols 1-A. Reliable

operates Frost M. WASHINGTON, 23CA5

6 {¶7} Appellants alleged that appellees inject waste fluid

from their fracking operations into their respective injection

wells, and this waste fluid contaminated appellants’ property.

Appellees “conduct their waste fluid injection operations within

sufficient proximity to [appellants’] Property and the Bethel

Wells to infiltrate, invade, flood, contaminate, pollute, and

damage the gas and oil reservoirs beneath [appellants’] Property

and the Property itself, including but not limited to certain of

the Bethel Wells, with harmful volumes of waste fluid.”

Appellees’ “Injection Wells have infiltrated, flooded,

contaminated, polluted, and/or damaged certain of the Bethel

Wells and damaged [appellants’] and [their] Property.”

{¶8} An August 2020 Ohio Department of Natural Resources

(ODNR) investigation reported that “significant quantities of

injection waste fluid from the Redbird #4 Class II Injection

Well” had been found “in a number of producing gas wells located

in the Berea Sandstone formation that had historically produced

little or minimal water, including but not limited to one of the

Bethel Wells: B.P. Pinkerton #1.” Redbird purportedly

relocated Redbird #4 to a lower depth, but appellants “have

continued to experience continuing and expanding losses of gas WASHINGTON, 23CA5

7 and oil production from the Bethel Wells.” Appellees’ “waste

fluid has infiltrated, invaded, flooded, contaminated, polluted,

damaged and/or rendered [appellants’ gas and oil reservoirs]

commercially nonviable.” As a result, appellants “have

experienced and continue to experience significant, continual

and expanding production losses of gas and oil from the Bethel

Wells, along with revenue losses derived therefrom.” Four wells

in particular have become useless: (1) Sandra 1; (2) C.E. and

Mary L. Pinkerton; (3) B.P. Pinkerton #1; and (4) Pinkerton #4.

{¶9} Appellants claimed that “[t]he sizeable and collective

scope of [appellees’] ongoing waste fluid injection

operations[,] and the resultant, large-scale contamination

and/or pollution of Ohio’s gas and oil reservoirs . . . prevent

[appellants] from further development of gas and oil on their

property.”

{¶10} Appellants further alleged that appellees’ “waste

fluid operations” “breached [appellees’] duties to [appellants],

violated Ohio statutes and regulations, trespassed upon

[appellants], created a nuisance for [appellants], and converted

[appellants’] Property, among other adverse consequences.”

Appellants asserted that appellees’ actions “have caused and WASHINGTON, 23CA5

8 continue to cause substantial and unreasonable damage to, and/or

the loss of, [appellants’] Property, [appellants’] rights, and

[appellants’] private use and enjoyment of their property,

resulting in [appellants’] economic losses, annoyance,

inconvenience, distress, discomfort, and other damages.”

{¶11} The complaint set forth seven “causes of action”:

negligence, negligence per se, trespass, nuisance, “res ipsa

loquitur,” conversion, and “damages.”

{¶12} With respect to their negligence claim, appellants

asserted that appellees were negligent in the following

respects:

a) by failing to adequately consider, and/or choosing to ignore, the harmful impacts of fracking waste fluid on neighboring properties and/or substrata, including but not limited to gas, oil, and potable water reservoirs contained therein; b) by failing to adequately consider, and/or choosing to ignore, the harmful impacts of high-volume fracking waste fluid injection operations on neighboring properties and/ or substrata, including but not limited to gas, oil, and potable water reservoirs contained therein; c) by failing to adequately investigate and/or determine, and/or choosing to ignore, the zone of harmful and/or damaging impact to neighboring properties and/or substrata from their waste fluid injection operations; d) by failing to adequately investigate and/or determine, and/or choosing to ignore, appropriate locations to drill their Injection Wells to WASHINGTON, 23CA5

9 minimize the potential for harmful or damaging impacts to neighboring properties and/or substrata; e) by siting and/or drilling Injection Wells along fault and/or fracture lines that intersect the Injection Well deposit zones and provide communication pathways to gas, oil and groundwater reservoirs, the Bethel Wells and/or the Plaintiffs’ Property; f) by using improper drilling techniques and/or drilling materials; g) by constructing and/or using ineffective and/or defective well casings and/or by failing to case and cement their Injection Wells to prevent exfiltrations of waste fluid outside the permissible injection zone; h) by negligently planning, training, and/or supervising their employees, contractors, staff, and/or agents; I) by failing to adequately monitor the volume, positioning, deposit location, accumulation, and/or containment of their waste fluid; j) by accepting cumulative volumes of waste fluid that exceed the capacity of their Injection Wells to adequately contain waste fluid within their permitted and/or permissible injection zones; k) by injecting and/or depositing cumulative volumes of waste fluid that exceed the capacity of their Injection Wells to adequately contain waste fluid within their permitted and/or permissible injection zones; l) by harming the commercial viability, development potential, and/or utility of Ohio’s oil and gas reservoirs; m) by failing to construct their Injection Wells and/or well sites in a reasonable manner so as to prevent any harmful, damaging, and/or impactful invasions, releases, spills, discharges, flooding, infiltrations, migrations, intrusions, and/or deposits of fracking waste fluid into gas and oil reservoirs and/or others’ property, including but not limited to Plaintiffs’ Property; WASHINGTON, 23CA5

10 n) by failing to take reasonable measures and precautions necessary to divert and/or respond to any harmful, damaging, and/or impactful invasions, releases, spills, discharges, flooding, infiltrations, migrations, intrusions, and/or deposits of waste fluid into gas and oil reservoirs and/or others’ property, including but not limited to Plaintiffs’ Property; o) by failing to drill, own, and operate their Injection Wells and well sites in a manner that comports with established legal and/or industry standards for drillers, owners, and/or operators of Class Il injection wells; p) by failing to drill, own, and/or operate their Injection Wells and well sites, in accordance with the laws, codes, statutes, and/or regulations of the State of Ohio, including, but not limited to Ohio Revised Code § 1509.22 and Ohio Administrative Code Sections 1501:9-3-03, 1501:9-3-06, 1501:9-3- 07, 1501.9-3-08, and 1501:9-3-11; q) by failing to dispose of waste fluid in a manner that prevents pollution of Ohio’s natural resources and/or the Plaintiffs’ Property; r) by creating unreasonable risks to Ohio's gas, oil, other mineral, and groundwater resources; s) by failing to drill, develop, and/or construct Injection Wells of sufficient capacity to contain and prevent any harmful, damaging, and/or impactful invasions, releases, spills, discharges, flooding, infiltrations, migrations, intrusions, and/or deposits of fracking waste fluid into gas and oil reservoirs and/or others’ property, including but not limited to Plaintiffs’ Property; t) by unnecessarily dissipating and/or damaging Ohio’s oil and gas reservoir energy; u) by inefficiently, excessively, and/ or improperly storing waste fluid; v) by locating, drilling, equipping, and/or operating their Injection Wells in a manner that reduces or tends to reduce the quantity of oil or gas WASHINGTON, 23CA5

11 ultimately recoverable under prudent and proper operations from Ohio's oil and gas reservoirs; w) by locating, drilling, equipping, operating, or producing their Injection Wells in a manner that causes or tends to cause unnecessary or excessive destruction of gas and oil resources; x) by invading the Plaintiffs’ subsurface property in a manner that actually interferes with Plaintiffs’ reasonable and foreseeable use of the subsurface and their Property; y) by physically damaging and interfering with the use of Plaintiffs Property; z) by placing, discharging, and/or causing to be placed and/or discharged in the Plaintiffs’ Property waste fluid that causes or could reasonably be anticipated to cause damage or injury to the environment; aa) by causing or allowing, the movement and/or migration of waste fluid in a manner, and into underground formations, other than as approved and/or authorized by the Ohio division of oil and gas; bb) by causing and/or allowing waste fluid to migrate out of its injection zone; cc) by causing and/or allowing waste fluid to migrate into impermissible underground formations not approved for injection of waste fluid; dd) by placing or causing to be placed in the land waste fluid that causes or could reasonably be anticipated to cause damage or injury to public health, public safety, and/or the environment; ee) by exceeding maximum allowable injection pressures; ff) by injecting waste fluid into productive and/or developable gas and oil reservoirs; and/or gg) in other potentially actionable ways.

{¶13} Appellants claimed that appellees’ negligence “caused

waste fluid and/or other harmful contamination to enter into and

significantly and/or irreparably or permanently impair and WASHINGTON, 23CA5

12 damage the quality and commercial viability of gas and oil

reservoirs, the [appellants’] Property, and the Bethel Wells.”

They further alleged that appellees’ “acts and/or omissions

referenced herein were, and continue to be, the direct and

proximate cause of damages to [appellants] and the Property.”

{¶14} Appellants additionally asserted that appellees were

negligent per se by failing to comply with Ohio statutes and

regulations regarding the protection of gas, oil, and

groundwater reservoirs. They asserted that appellees’

negligence per se is “a direct and proximate cause of waste

fluid and/or other harmful contaminants entering into and

significantly and/or irreparably or permanently impairing and

damaging the quality and commercial viability of gas and oil

reservoirs, [appellants’] Property, and the Bethel Wells.”

{¶15} For their trespass claim, appellants alleged that

appellees’ conduct has “caused waste fluid to physically invade,

intrude, interfere with, and/or unlawfully enter upon, and cause

substantial damage to, [appellants’] Property without authority,

privilege, invitation, inducement and/or [appellants’]

permission.” WASHINGTON, 23CA5

13 {¶16} With respect to their nuisance claim, appellants

asserted that appellees’ actions “have restricted and infringed

upon [appellants’] use and enjoyment of the Property, creating a

qualified nuisance for [appellants].” They alleged that

appellees’

Injection Well operations have imposed a nuisance upon [appellants] in the form of financial, environmental, and emotional hardship inasmuch as [appellees’] Injection Well operations have overtaken and damaged gas and oil production on [appellants’] Property with a toxic substance that is regulated under Ohio law to prevent human and environmental contact, thereby exposing [appellants’] Property . . . to additional regulatory requirements where said requirements would otherwise not have been imposed.

{¶17} Appellants claimed that the damage to their property

“is reasonably believed to be permanent” and that their property

“is believed to be incapable of being restored.” Appellants

further alleged that appellees’ conduct “in creating this

nuisance [was], and continue[s] to be, the direct and proximate

cause of damages to [appellants] and the Property.”

{¶18} Appellants’ complaint also alleged that under the

doctrine of res ipsa loquitur, “it can be readily inferred . . .

that [appellees] have been and continue to be negligent in their

waste fluid injection and/or Injection Well operations.” WASHINGTON, 23CA5

14 Appellants further asserted that appellees’ “negligent waste

fluid injection operations were, and continue to be, the direct

and proximate cause of damages to [appellants] and the

{¶19} Regarding their conversion claim, appellants alleged

that appellees have converted appellants’ property by

transforming it from “commercially viable and productive gas and

oil reservoirs and operating gas and oil wells into [appellees’]

own repositories for [appellees’] injection, storage,

accumulation, and/or disposal of their waste fluid.” Appellants

also asserted that appellees’

conduct in their waste fluid injection operations has interfered with [appellants’] dominion and/or control over the Bethel Wells and [appellants’] chattel property used in connection with the operation of the Bethel Wells and located upon [appellants’] Property in a manner that is wrongful and inconsistent with, interferes with, and/or denies and/or excludes, and is damaging to, [appellants’] rights, resources, and abilities to commercially produce and/or develop, and/or lease the right to develop, gas and oil in Washington County, Ohio and/or Athens County, Ohio, and/or otherwise benefit from their Property.

{¶20} Appellants claimed that appellees’ “wrongful acts . .

. constitute a conversion of [appellants’] Property that has

interfered with and damaged [appellants’] rights, resources, and WASHINGTON, 23CA5

15 abilities to commercially produce and/or develop, and/or lease

the right to develop, gas and oil.” They contended that

appellees’ conduct “has been so great as to be akin to the

imposition of a ‘forced judicial sale’ and requires [appellees]

to pay the full value of the [appellants’] Property with which

they have interfered.” Appellants also alleged that appellees’

conversion is a “direct and proximate cause” of their damages.

{¶21} Appellants next set forth the damages that they have

suffered “[a]s a direct and proximate result of [appellees’]

aforementioned acts and/or omissions.” More particularly,

appellants alleged that they have sustained the following

damages: (1) “the loss of value of” their property; (2) “the

loss of use and enjoyment of” their property; (3) “inconvenience

and discomfort caused by interference with the peaceful

possession and enjoyment of” their property; (4) “the loss of

physical gas and oil and/or gas and oil production”; (5) “the

loss of business revenue”; (6) “the loss of sunk operating

costs”; (7) “interference with and/or the loss of the absolute

and exclusive rights to produce, lease, and/or sublease the

right to produce gas and oil on their Property”; (8) “the

violation of [appellants’] rights to access, develop and rely WASHINGTON, 23CA5

16 upon untainted gas and oil reservoirs of the state as guaranteed

by the Ohio Constitution and laws of the State of Ohio”; (9)

“harm to [appellants’] business operations and/or relationships

with [appellants’] lessors”; (10) “interference with and/or

damage to [appellants’] leaseholds”; (11) “interference with

[appellants’] private use and enjoyment of their land and/or

Property”; (12) “harm to and/or the loss of use of [appellants’]

business equipment”; (13) “costs incurred to attempt to

investigate, repair and/or mitigate, and/or clean up the damage

to” their property; (14) “loss of confidence in the quality of

[their property] for commercial gas and oil development”; (15)

“inconvenience, distress, anxiety, and/or emotional and mental

anguish”; (16) “discomfort and annoyance related to the loss of

use and/or loss of enjoyment and/or contamination of the

Property; and/or”; (17) “loss of the quality of life

[appellants] otherwise enjoyed.”

{¶22} Appellants also alleged that appellees’ conduct

warrants punitive damages. They asked the court to find

appellees “jointly and severally” liable. WASHINGTON, 23CA5

17 {¶23} Appellants later dismissed their claims against

Fountain Quail Drilling, LLC. The 15 remaining defendants2 filed

Civ.R. 12(B)(6) motions to dismiss appellants’ complaint for

failure to state a claim upon which relief can be granted.

These defendants essentially asserted that appellants’ complaint

failed to allege operative facts that connected each defendant

to appellants’ injuries and failed to give the defendants

sufficient notice of the claims raised against them. Although

each defendant framed the argument in a slightly different

manner, they all raised some variation of the argument that

appellants’ complaint does not contain sufficient facts to give

them notice of “the basic ‘who’, ‘what’, ‘when’, and ‘where’ so

that [the defendants] may know at least the bare minimum about

the claims against them.” Redbird’s Motion to Dismiss at 8.

{¶24} Some of the defendants also argued that appellants’

complaint failed to show that the defendants’ conduct

proximately caused appellants’ injuries. For example, Tallgrass

2 We observe that not all of the defendants who filed motions to dismiss are involved in this appeal. On March 1, 2023, the trial court granted Reliable Enterprises, Inc.’s (Reliable) counsel’s motion to withdraw. Reliable has not entered an appearance in this appeal. WASHINGTON, 23CA5

18 argued that appellants “fail[ed] to meet their burden for

showing Tallgrass proximately caused the harm described in the

Complaint.”

{¶25} The defendants further argued that appellants’

conversion claim failed to state a claim upon which relief could

be granted because it did not allege that any defendant had

converted appellants’ personal property, but instead, alleged

only that the defendants had converted appellants’ mineral

estate, which the defendants asserted is real property.

{¶26} The defendants also contended that appellants’ “res

ipsa loquitur” claim fails to state a claim upon which relief

could be granted. They asserted that res ipsa loquitur is an

evidentiary rule, not an independent cause of action.

{¶27} The defendants additionally asked the court to dismiss

appellants’ “claim” for emotional damages. They asserted that

Bethel is a business entity that cannot recover emotional

damages.

{¶28} Tallgrass and JDDC further argued that appellants’

nuisance claim fails to state a claim upon which relief can be

granted. They contended that to state a nuisance claim,

appellants must allege that they suffered physical discomfort, WASHINGTON, 23CA5

19 but their complaint only seeks damages for their loss of use and

enjoyment of their property. Tallgrass and JDDC thus asked the

court to dismiss appellants’ nuisance claim.

{¶29} The trial court granted the defendants’ motions to

dismiss. The court agreed with the defendants that appellants’

complaint failed to allege sufficient facts to give the

defendants notice of the claims against them. The court also

agreed with the defendants that appellants’ complaint failed to

allege “what property [the defendants] have damaged, when the

property was damaged, who actually damaged what property,” and

“whether the property damaged was held in fee simple or were

leased mineral rights.”3

{¶30} On January 31, 2023, appellants filed a motion for

leave to amend their complaint and submitted a 63-page proposed

amended complaint that intended to address the purported ills of

which the defendants had claimed appellants’ initial complaint

suffered.

{¶31} On March 13, 2023, the trial court denied appellants’

motion to amend their complaint. The court found that the

3 We have included additional details regarding the motion- to-dismiss proceedings in an appendix to this opinion. WASHINGTON, 23CA5

20 proposed amended complaint failed to give appellees “notice as

to which [d]efendant did what to which well” and does “not

identify the specific property rights that have been harmed by

which [d]efendant.” The court stated that the proposed amended

complaint “again fails to answer the who, what, when, where[,]

and how questions required by Civil Rule 8.”4 The court

determined that the amended complaint did not remedy the

purported defects appellees identified in their motions to

dismiss. The court thus concluded that the proposed amendment

would be futile and the court denied appellants’ motion to amend

the complaint. This appeal followed.

I

{¶32} In their first assignment of error, appellants assert

that the trial court erred by dismissing their complaint.

Appellants contend that when the trial court evaluated whether

appellants’ complaint fails to state a claim upon which relief

4 We observe that some of the appellees referred the trial court to other Ohio appellate decisions that ostensibly endorse the “plausibility” standard that the United States Supreme Court adopted in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). As we note in a later part of this opinion, however, the Ohio Supreme Court has not adopted this “plausibility” standard. WASHINGTON, 23CA5

21 can be granted, the court imposed a heightened pleading standard

that does not exist in Ohio. Appellants assert that under

Ohio’s liberal, notice-pleading standard, their complaint does

not fail to state a claim upon which relief can be granted.

They argue that the complaint gives appellees adequate notice of

appellants’ claims and that, contrary to appellees’ innuendos,

they need not support their claims at that juncture with

evidence or scientific proof.

{¶33} Appellees counter that appellants’ complaint fails to

satisfy Ohio’s notice-pleading standard. While each appellee

offers slightly different reasons why appellants’ complaint

fails this standard, they essentially argue that appellants’

complaint (1) is nothing but utter speculation, and (2) fails to

allege the “operative facts” that give rise to the claims for

relief. Appellees also repeat the argument that they raised

below–that the complaint fails to provide appellees “with the

basic ‘who’, ‘what’, ‘when’, and ‘where’ so that [appellees] may

know at least the bare minimum about the claims against them.”5

Redbird’s Brief at 10.

5 We have included more specifics regarding the parties’ arguments in the appendix to this opinion. WASHINGTON, 23CA5

22 {¶34} JDDC takes the argument one step further and asserts

that appellants’ complaint does not “credibly allege that the

large-volume, high pressure waste fluid injection operations of

Appellees J.D. Drilling Company and James E. Diddle collectively

caused flooding damage to the development of Plaintiff’s mineral

estate.” (Emphasis added.) We summarily dismiss this argument

from the start because it directly conflicts with Ohio law,

which, as stated below, requires courts to presume that all

factual allegations contained in the complaint are true. The

credibility of the allegations is not a proper consideration at

the motion-to-dismiss stage.

STANDARD OF REVIEW

{¶35} “Appellate courts conduct a de novo review of trial

court decisions that grant or deny a Civ.R. 12(B)(6) motion to

dismiss.”6 Student Doe v. Adkins, 2021-Ohio-3389, ¶ 17 (4th

Dist.), citing Alexander Local School Dist. Bd. of Edn. v.

6 Diversified asserts that the abuse-of-discretion standard of review applies because appellants have asked this court to reverse the trial court’s decision that overruled their motion to amend their complaint. Appellants also ask this court to reverse the trial court’s decision that granted appellees’ motions to dismiss, however. The proper standard of review for this issue is the de novo standard of review. WASHINGTON, 23CA5

23 Village of Albany, 2017-Ohio-8704, ¶ 22 (4th Dist.); e.g.,

Valentine v. Cedar Fair, L.P., 2022-Ohio-3710, ¶ 12, citing

Alford v. Collins-McGregor Operating Co., 2018-Ohio-8, ¶ 10. We

therefore afford no deference to the trial court’s decision, but

instead, independently review the trial court’s decision.

Struckman v. Bd. of Edn. of Teays Valley Local School Dist.,

2017-Ohio-1177, ¶ 18 (4th Dist.).

MOTION-TO-DISMISS STANDARD

{¶36} Civ.R. 12(B)(6) allows a party to file a motion to

dismiss a complaint for failing to state a claim upon which

relief can be granted. “[A] Civ.R. 12(B)(6) motion to dismiss

tests only the sufficiency of the allegations.” Volbers–Klarich

v. Middletown Mgt., Inc., 2010-Ohio-2057, ¶ 9, citing Assn. for

the Defense of the Washington Local School Dist. v. Kiger, 42

Ohio St.3d 116, 117 (1989); accord State ex rel. Hanson v.

Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548 (1992)

(explaining that a Civ.R. 12(B)(6) motion to dismiss tests the

sufficiency of the complaint). A court that is considering a

Civ.R. 12(B)(6) motion to dismiss for failure to state a claim

upon which relief can be granted must presume that all factual

allegations contained in the complaint are true and must WASHINGTON, 23CA5

24 construe all reasonable inferences in favor of the nonmoving

party. E.g., Schirmer v. Mt. Auburn Obstetrics & Gynecologic

Assoc., Inc., 2006-Ohio-942, ¶ 3, fn.1, citing Maitland v. Ford

Motor Co., 2004-Ohio-5717, ¶ 16; Perez v. Cleveland, 66 Ohio

St.3d 397, 399 (1993). Consequently, a trial court may not

grant a motion to dismiss for failure to state a claim simply

because the court “doubts the plaintiff will prevail.” Bono v.

McCutcheon, 2005-Ohio-299, ¶ 8 (2nd Dist.); accord Barton v.

Cty. of Cuyahoga, 2017-Ohio-7171, ¶ 18 (8th Dist.). Instead,

“Rule 12(B)(6) motions should be granted only where the

allegations in the complaint show the court to a certainty that

the plaintiff can prove no set of facts upon which he might

recover.” Slife v. Kundtz Properties, Inc., 40 Ohio App.2d 179,

185-186 (8th Dist.1974); accord State Auto. Mut. Ins. Co. v.

Titanium Metals Corp., 2006-Ohio-1713, ¶ 8 (stating that “a

trial court must examine the complaint to determine if the

allegations provide for relief on any possible theory”). In

other words, a trial court may grant a motion to dismiss for

failure to state a claim only if it appears “beyond doubt from

the complaint that the plaintiff can prove no set of facts

entitling him to recovery.” O’Brien v. Univ. Community Tenants WASHINGTON, 23CA5

25 Union, 42 Ohio St.2d 242 (1975), syllabus; e.g., LeRoy v. Allen,

Yurasek & Merklin, 2007-Ohio-3608, ¶ 14; Maitland v. Ford Motor

Co., 2004-Ohio-5717, ¶ 11; York v. Ohio State Highway Patrol, 60

Ohio St.3d 143, 144 (1991); see also State ex rel. Ware v.

Booth, 2024-Ohio-2102, ¶ 4 (motion for judgment on the pleadings

does not permit courts to weigh the evidence, and thus, even

though the relator’s “account seem[ed] farfetched,” motion for

judgment on the pleadings was not warranted).

{¶37} “This standard is consistent with Civ.R. 8(A), which

provides for notice pleading and requires only (1) ‘a short and

plain statement of the claim showing that the pleader is

entitled to relief, and (2) a demand for judgment for the relief

to which he deems himself entitled.’” State ex rel. Hanson v.

Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 549 (1992);

Wilson v. Riverside Hosp., 18 Ohio St.3d 8, 9–10 (1985)

(citation omitted) (“The purpose of [Civ.R. 8(A)] is to notify

the defendant of the legal claim against him.”). Importantly,

Ohio remains “a notice-pleading state.” Doe v. Greenville City

Schools, 2022-Ohio-4618, ¶ 7, citing Wells Fargo Bank, N.A. v.

Horn, 2015-Ohio-1484, ¶ 13; accord Maternal Grandmother v.

Hamilton Cty. Dept. of Job and Family Servs., 2021-Ohio-4096, ¶ WASHINGTON, 23CA5

26 10. Moreover, the Ohio Supreme Court has not adopted “the

heightened federal pleading standard” arguably endorsed in

Twombly and Iqbal. State ex rel. Ware v. Booth, 2024-Ohio-2102,

¶5, fn. 1.

{¶38} Accordingly, “Ohio law does not ordinarily require a

plaintiff to plead operative facts with particularity.”

Cincinnati v. Beretta U.S.A. Corp., 2002-Ohio-2480, ¶ 29.

Instead, “only in a few circumscribed types of cases, such as a

workplace intentional tort or a negligent-hiring claim against a

religious institution,” must a “plaintiff plead operative facts

with particularity.” Id. at ¶ 29, fn.5, citing York, 60 Ohio

St.3d at 145; see Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190

(1988) (employee’s intentional tort claim against employer) and

Byrd v. Faber, 57 Ohio St.3d 56 (1991) (negligent hiring claim

against religious institution); see also S.Ct.Prac.R.

12.02(B)(1) (complaints in original actions filed in the Supreme

Court); Civ.R. 9(B) (claims of fraud or mistake). Any further

“exceptions to the pleading requirement of the Civil Rules,

which were adopted by the Supreme Court [of Ohio] to specify the

types of pleadings that are appropriate, should be made by the WASHINGTON, 23CA5

27 Supreme Court only and not by lower courts.” McCormac, Ohio

Civil Rules Practice 98, § 5.02 (3d Ed. 2003).

{¶39} Thus, outside the limited types of cases identified

above, Civ.R. 8(A) simply requires “a short and plain statement

of the claim” and a demand for relief. See Black’s Law

Dictionary (12th ed. 2024) (defining “notice pleading” as “[a]

procedural system requiring that the pleader give only a short

and plain statement of the claim showing that the pleader is

entitled to relief, and not a complete detailing of all the

facts”). A complaint is not, therefore, “fatally defective and

subject to dismissal” simply because it does not set forth each

element of a cause of action “with crystalline specificity.”

Border City Sav. & Loan Assn. v. Moan, 15 Ohio St.3d 65, 66

(1984).

{¶40} We further observe that Civ.R. 84 specifically states

that the forms contained in the Appendix of Forms to the Ohio

Civil Rules “shall be accepted for filing by courts of this

state.” Civ.R. 84 also specifies that those forms illustrate

“the simplicity and brevity of statement which these rules

contemplate.” One of the forms included in the appendix is a

“[c]omplaint for negligence where plaintiff is unable to WASHINGTON, 23CA5

28 determine definitely whether the person responsible is C.D. or

E.F. or whether both are responsible and where his evidence may

justify a finding of wilfulness or of recklessness or of

negligence.” Civ.R. Form 9. This form reads in its entirety as

follows:

1. On _____, 19___, in a public highway called _____ Street in _____, Ohio, defendant C.D. or defendant E.F., or both defendants C.D. and E.F. wilfully or recklessly or negligently drove or caused to be driven a motor vehicle against plaintiff who was then crossing said highway. 2. As a result plaintiff was thrown down and had his leg broken and was otherwise injured, was prevented from transacting his business, suffered great pain of body and mind, and incurred expenses for medical attention and hospitalization in the sum of one thousand dollars. WHEREFORE plaintiff demands judgment against C.D. or against E.F. or against both in the sum of _____ dollars and costs.

Id. This form thus reveals that contrary to appellees’ repeated

assertions throughout the proceedings, Ohio’s liberal, notice-

pleading rules do not (outside of the very limited exceptions

that do not apply here) require facts to be alleged with

particularity. See generally Maternal Grandmother, 2021-Ohio-

4096, at ¶ 11 (“when a complaint invokes the exception to a

government employee’s immunity under R.C. 2744.03(A)(6)(b),

notice pleading suffices and the plaintiff may not be held to a WASHINGTON, 23CA5

29 heightened pleading standard or expected to plead the factual

circumstances surrounding an allegation of wanton or reckless

behavior with particularity”); Coryell v. Bank One Tr. Co. N.A.,

2004-Ohio-723, ¶ 25 (“a plaintiff may plead a prima facie case

of age discrimination by pleading ‘a short and plain statement

of the claim showing that the party is entitled to relief.’

Civ.R. 8(A)(1).”); Beretta, 2002-Ohio-2480, at ¶ 29 (the

complaint complied with notice-pleading standard when “it

alleged that appellees had manufactured or supplied defective

guns without appropriate safety features”; the complaint need

not “allege with specificity that particular guns were defective

and as a result caused particular injuries”); York, 60 Ohio

St.3d at 144–45 (“In her complaint, the appellee alleged that

although the decedent was not disturbing the peace or violating

the law, the officers pursued him ‘negligently, needlessly,

willfully and maliciously,’ and used excessive force to engage

in a high speed chase with him. On the basis of this claim, we

cannot conclude that there is no set of facts which would

entitle the appellee to recover from the state.”); Wilson v.

Riverside Hosp., 18 Ohio St.3d 8, 10 (1985) (“a complaint filed

by an employee against an employer states a claim for relief for WASHINGTON, 23CA5

30 retaliatory discharge when it alleges that the employee was

injured on the job, filed a claim for workers’ compensation and

was discharged by that employer in contravention of R.C.

4123.90”); Border City Sav. & Loan, 15 Ohio St.3d at 66 (“It

will be incumbent upon appellant to establish that these

lawsuits were instituted maliciously, without probable cause,

and, as a general rule, were terminated in appellant’s favor.

Nonetheless, it does not render appellant’s complaint fatally

defective and subject to dismissal that each element of its

cause of action was not set forth in the complaint with

crystalline specificity.”).

{¶41} “Thus, to survive a motion to dismiss for failure to

state a claim upon which relief can be granted, a pleader is

ordinarily not required to allege in the complaint every fact he

or she intends to prove . . .” State ex rel. Hanson, 65 Ohio

St.3d at 549, citing York, 60 Ohio St.3d at 144–145; see York,

60 Ohio St.3d at 146 (Moyer, J., concurring) (stating that

complaint need not contain more than “brief and sketchy

allegations of fact to survive a motion to dismiss under the

notice pleading rule”); City of Willoughby Hills v. Cincinnati

Ins. Co., 9 Ohio St.3d 177, 180 (1984) (“No longer must a WASHINGTON, 23CA5

31 complaint set forth specific factual allegations.”); see also

Civ.R. 8(E) (averments contained in a pleading “shall be simple,

concise, and direct”). A complaint must, however, “‘contain

allegations from which an inference fairly may be drawn that

evidence on these material points will be introduced at trial.’”

Schlenker Ents., L.P. v. Reese, 2010-Ohio-5308, ¶29 (3d Dist.),

quoting Fancher v. Fancher, 8 Ohio App.3d 79, 83 (1st Dist.

1982). “Consequently, ‘as long as there is a set of facts,

consistent with the plaintiff’s complaint, which would allow the

plaintiff to recover, the court may not grant a defendant’s

motion to dismiss.’” Beretta, 2002-Ohio-2480, at ¶ 29, quoting

York, 60 Ohio St.3d at 145.

{¶42} Moreover, a plaintiff is “not required to plead the

legal theory” of the case at the pleading stage. Illinois

Controls, Inc. v. Langham, 70 Ohio St.3d 512, 526 (1994).

Instead, the complaint “need only give reasonable notice of the

claim.” State ex rel. Harris v. Toledo, 74 Ohio St.3d 36, 37

(1995). Furthermore, “a plaintiff is not required to prove his

or her case at the pleading stage.” York, 60 Ohio St.3d at 144-

145. And notably, “Civ.R. 8(A) does not contemplate evidentiary

pleading.” Collins v. National City Bank, 2003–Ohio–6893, ¶ 58 WASHINGTON, 23CA5

32 (2d Dist.). Indeed, “[v]ery often, the evidence necessary for a

plaintiff to prevail is not obtained until the plaintiff is able

to discover materials in the defendant’s possession.” York, 60

Ohio St.3d at 145; accord State ex rel. Hanson, 65 Ohio St.3d at

549 (citing York and noting that the facts necessary to prove

claims alleged in a complaint “may not be available until after

discovery”).

Moreover, Civ.R. 8(F) provides that courts should construe the pleadings so as to do substantial justice. The object is not absolute technical conformity with arcane rules of pleading but rather simply to see whether the plaintiffs’ wording provides the defendants with notice of the claim and the opportunity to defend it.

Ogle v. Ohio Power Co., 2008-Ohio-7042, ¶ 9 (4th Dist.)

(concluding “that delving into the nuances of absolute versus

qualified nuisance should be reserved for discovery and summary

judgment”).

{¶43} The foregoing “simplified notice-pleading standard

relies on liberal discovery rules and summary-judgment motions

to define disputed facts and to dispose of nonmeritorious

claims.” Id. at ¶ 5 (4th Dist.); McCormac at 222, § 10.01

(“discovery, rather than pleadings, is used to clarify and

narrow the issues”). In fact, “‘[b]ecause it is so easy for the WASHINGTON, 23CA5

33 pleader to satisfy the standard of Civ.R. 8(A), few complaints

are subject to dismissal.’” Ogle, 2008-Ohio-7042, at ¶ 5 (4th

Dist.), quoting Leichtman v. WLW Jacor Communications, Inc., 92

Ohio App.3d 232, 234 (1st Dist. 1994). Additionally, “[a]

motion to dismiss for failure to state a claim is viewed with

disfavor and is rarely granted.” Wilson v. Riverside Hosp., 18

Ohio St.3d 8, 10 (1985) (citations omitted). Consequently,

Civ.R. 12(B)(6) dismissals are “reserved for the rare case that

cannot possibly succeed.” Tri–State Computer Exchange, Inc. v.

Burt, 2003-Ohio-3197, ¶ 12 (1st Dist.).

{¶44} Furthermore, a court that is reviewing a Civ.R.

12(B)(6) motion to dismiss “cannot rely on evidence or

allegations outside the complaint.” State ex rel. Fuqua v.

Alexander, 79 Ohio St.3d 206, 207 (1997); accord Volbers-Klarich

v. Middletown Mgt., Inc., 2010-Ohio-2057, ¶ 11 (“the movant may

not rely on allegations or evidence outside the complaint; such

matters must be excluded, or the motion must be treated as a

motion for summary judgment”). However, “[m]aterial

incorporated in a complaint may be considered part of the

complaint for purposes of determining a Civ.R. 12(B)(6) motion

to dismiss.” (Citations omitted.) State ex rel. Crabtree v. WASHINGTON, 23CA5

34 Franklin Cty. Bd. of Health, 77 Ohio St.3d 247, 249, fn. 1

(1997). Thus, a court may consider written instruments attached

to a complaint when ruling on a Civ.R. 12(B)(6) motion to

dismiss. Cooper v. Highland Cty. Bd. Of Commrs., 2002-Ohio-

2353, ¶ 9 (4th Dist.); see also Civ.R. 10(D) (“When any claim or

defense is founded on an account or other written instrument, a

copy of the account or written instrument must be attached to

the pleading.”).

{¶45} In the case sub judice, we recognize that appellees

presented the trial court with quotations from cases that appear

to impose a heightened pleading standard. As we stated above,

however, the Ohio Supreme Court has not endorsed a heightened

pleading standard, except in very limited types of cases, none

of which is relevant here. Moreover, the appendix of forms

contained in the Ohio Rules of Civil Procedure indicate that a

complaint need not contain detailed factual allegations, as

appellees persistently have argued.

{¶46} Furthermore, appellees cite no Ohio case law that

demands a complaint answer the who, what, when, where, and how

questions that they claim Civ.R. 8(A) requires. That standard

the appellees desire to be applied appears to have originated in WASHINGTON, 23CA5

35 federal court cases that apply a heightened pleading standard in

fraud cases. UMB Bank, N.A. v. Guerin, 89 F.4th 1047, 1051 (8th

Cir. 2024), quoting Crest Constr. II, Inc. v. Doe, 660 F.3d 346,

353 (8th Cir. 2011) (“‘[A]llegations of fraud . . . [must] be

pleaded with particularity. In other words, [Federal] Rule 9(b)

requires plaintiffs to plead the who, what, when, where, and

how: the first paragraph of any newspaper story.’”); Young v.

Grand Canyon Univ., Inc., 57 F.4th 861, 873, (11th Cir. 2023)

(“a plaintiff needs to plead the who, what, when, where, and how

regarding a claim only when Rule 9(b)’s heightened pleading

standard applies”); Sanderson v. HCA-The Healthcare Co., 447

F.3d 873, 877 (6th Cir. 2006), quoting United States ex rel.

Thompson v. Columbia/HCA Healthcare Corp., 125 F.3d 899, 903

(5th Cir. 1997) (internal quotation marks omitted) (“Rule 9(b)

requires parties bringing a claim for fraud or fraudulent

concealment to specify the ‘who, what, when, where, and how of

the alleged fraud.’”).

{¶47} We recognize that the case at bar involves Ohio’s

Civil Rules of Procedure, not the Federal Rules of Civil

Procedure, and it does not involve fraud. Thus, appellees’

assertions that appellants must plead particulars regarding the WASHINGTON, 23CA5

36 who, what, when, where, and how to satisfy Ohio’s notice-

pleading standard is without merit. See Pugh v. Sloan, 2019-

Ohio-3615, ¶ 40 (11th Dist.) (“Civ. R. 8 does not require” a

complaint to allege “what was allegedly stolen or slandered,

when it was stolen or slandered, and by whom”); see generally

Ogle, 2008-Ohio-7042, at ¶ 9 (4th Dist.) (Civ.R. 8(A) “dictates”

when deciding whether a complaint gives fair notice so as to

survive a motion to dismiss for failure to state a claim and

courts need not parse “the complaint to see whether the

plaintiffs have pleaded operative facts going to each element of

the claim” or “delv[e] into the nuances” of each claim; instead,

those details “should be reserved for discovery and summary

{¶48} As we explain below, applying the correct, notice-

pleading standard to appellants’ complaint shows that

appellant’s complaint satisfies this standard. Therefore, we

believe that the trial court incorrectly dismissed appellants’

complaint.

EVIDENCE OUTSIDE OF THE COMPLAINT

{¶49} Before we review whether appellants’ complaint fails

to state a claim upon which relief can be granted, we first WASHINGTON, 23CA5

37 consider some of the appellees’ arguments that we may consider

evidence outside of the complaint, such as the ODNR report and

the precise location of the parties’ wells. Tallgrass argued

that the trial court could consider the ODNR report because

appellants’ complaint “effectively incorporate[d]” it by

“repeatedly rely[ing] on it to bring their claims.” Some of the

appellees further argue that we may take judicial notice of the

location of the wells identified in the complaint by examining

maps obtained from the ODNR website.

{¶50} We do not agree that we may consider the ODNR report

when we consider whether appellants’ complaint fails to state a

claim upon which relief can be granted. Appellants did not

attach a copy of the ODNR report to their complaint. Moreover,

unlike actions founded on an account or a written instrument,

which require a party to attach a copy of the account or written

instrument to the pleading, Civ.R. 10(D)(1), appellants’ tort

complaint is not founded upon an account or written instrument.

Moreover, appellants’ tort claims are not medical, dental,

optometric, or chiropractic claims that require an affidavit of

merit to accompany the complaint. See Civ.R. 10(D)(2).

Appellants’ tort claims do not otherwise fall within any other WASHINGTON, 23CA5

38 exception that would require the complaint to allege the

existence of a written report, like the ODNR report, that

arguably may support their tort claims. See generally Estate of

Hand by & through Hand v. Florida Dept. of Corr., 2023 WL

119426, *8 (11th Cir. Jan. 6, 2023) (“a plaintiff is not

required to put expert testimony within a complaint itself—that

would raise the pleading standard well-beyond what is

required”). Additionally, requiring a party to attach evidence

that may support claims for relief that do not fall within one

of the Civ.R. 10(D) exceptions is contrary to Ohio’s liberal,

notice-pleading standard. See Wells Fargo Bank, N.A. v. Horn,

2015-Ohio-1484, ¶ 13 (“To require a plaintiff to attach proof of

standing to a foreclosure complaint would also run afoul of

Ohio’s notice-pleading requirements.”). For this reason, we do

not believe that the complaint’s reference to the ODNR report

must result in the conclusion that the complaint incorporated

the entire ODNR report and that we may consider it when

determining whether appellants’ complaint states a claim upon

which relief can be granted.

{¶51} Even if, for purposes of argument, we were to consider

the entire ODNR report, we observe that a Civ.R. 12(B)(6) WASHINGTON, 23CA5

39 dismissal based upon a written instrument “is proper only when

the language used in the written instrument is clear and

unambiguous and creates ‘an insuperable bar to relief.’”

Alexander Local School Dist., 2017-Ohio-8704, at ¶ 26 (4th

Dist.), quoting Slife, 40 Ohio App.2d at 186. The ODNR report

does not create an insuperable bar to relief. It does not show

that it is impossible that injection wells other than the

Redbird #4 injection well may have contaminated appellants’

mineral estate.

{¶52} Regarding appellees’ assertion that we may take

judicial notice of the location of the parties’ wells, even if

we were to take judicial notice of the location of the wells,

whether waste fluid from an injection well located miles away or

in a different county, for instance, may have contaminated

appellants’ property is a factual question not suited for

determination upon a motion to dismiss. We again note that

appellants need not prove their case in their complaint.

STANDING

{¶53} Appellants also argue that the trial court incorrectly

dismissed their complaint for lack of standing. Appellants

assert that the complaint contains sufficient allegations to WASHINGTON, 23CA5

40 notify appellees that appellants claim a joint property interest

in the damaged property.

{¶54} Appellees Redbird and JDDC argue that appellants’

complaint fails to establish that appellants have standing to

seek relief against Redbird and JDDC. Redbird contends that

appellants lack standing because they “failed to plead an actual

injury” by failing “to provide any meaningful description or

identification of the property that was allegedly damaged.”

Redbird further asserts that the complaint does not

“sufficiently allege that any of the [a]ppellants own the

underlying mineral interests that [a]ppellees allegedly

damaged.”

{¶55} JDDC claims that appellants lack standing because they

“did not allege that any specific injury was fairly traceable to

any unlawful conduct by” JDDC. JDDC also contends that the

complaint fails “to identify who owns the mineral rights that

have been damaged in order to establish who has standing to sue”

and does not identify “any possible claim” that Ms. Lane “may

have.”

{¶56} “Before an Ohio court can consider the merits of a

legal claim, the person or entity seeking relief must establish WASHINGTON, 23CA5

41 standing to sue.” ProgressOhio.org, Inc. v. JobsOhio, 2014-

Ohio-2382, ¶ 7, quoting Ohio Pyro, Inc. v. Ohio Dept. of

Commerce, Div. of State Fire Marshal, 2007-Ohio-5024, ¶ 27. The

essential question “is whether the party seeking relief has

‘alleged such a personal stake in the outcome of the controversy

as to assure that concrete adverseness which sharpens the

presentation of issues upon which the court so largely depends

for illumination.’” Racing Guild of Ohio, Local 304 v. Ohio

State Racing Comm., 28 Ohio St.3d 317, 321 (1986), quoting Baker

v. Carr, 369 U.S. 186, 204 (1962). “Under traditional standing

principles, a plaintiff must show, at a minimum, that he has

suffered “‘(1) an injury that is (2) fairly traceable to the

defendant’s allegedly unlawful conduct, and (3) likely to be

redressed by the requested relief.’” State ex rel. Walgate v.

Kasich, 2016-Ohio-1176, ¶ 18, quoting ProgressOhio.org, 2014-

Ohio-2382, at ¶ 7, quoting Moore v. Middletown, 2012-Ohio-3897,

¶ 22.

{¶57} At the pleading stage, a plaintiff “is ‘not required

to establish its standing beyond the allegations of the

[c]omplaint.’” Wells Fargo Bank, N.A. v. Horn, 2015-Ohio-1484, ¶

13, quoting Chase Home Fin., L.L.C. v. Mentschukoff, 2014-Ohio- WASHINGTON, 23CA5

42 5469, ¶ 20 (11th Dist.). A complaint sufficiently establishes a

plaintiff’s standing when it alleges “enough general facts to

show that injury resulted from the defendant’s conduct, because

when deciding a motion to dismiss, a court will presume ‘that

general allegations embrace those specific facts that are

necessary to support a claim.’” Sacksteder v. Senney, 2012-

Ohio-4452, ¶ 62 (2nd Dist.), quoting S. Christian Leadership

Conference v. Combined Health Dist., 2010–Ohio–6550, ¶ 17 (2d

Dist.); accord State ex rel. Walgate, 2016-Ohio-1176, at ¶ 47,

citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)

(“we presume that general allegations embrace the specific facts

necessary to support a claim”).

{¶58} In the case sub judice, we believe that appellants’

complaint sets forth sufficient general facts to show that

injury resulted from Redbird’s and JDDC’s conduct. The

complaint identifies the injury as appellants’ damaged mineral

estate. The complaint fairly traces Redbird’s and JDDC’s

conduct to that injury by alleging that Redbird and JDDC inject

toxic waste into injection wells located near appellants’

property. Appellants’ complaint lists multiple duties that each

appellee allegedly breached and alleges that, as a result of WASHINGTON, 23CA5

43 those breaches, appellants suffered injuries. These claims

sufficiently allege that appellants’ injuries are fairly

traceable to Redbird’s and JDDC’s purported unlawful conduct.

We again emphasize, however, that at the pleading stage,

appellants need not definitively prove that Redbird’s and JDDC’s

conduct actually caused appellants’ injury, or scientifically

detail how their conduct caused appellants’ injury.

{¶59} Furthermore, we believe that the complaint alleges

sufficient facts to show that each appellant has a personal

stake in the outcome of the controversy. Appellants allege that

Redbird’s and JDDC’s conduct damaged appellants’ property in

which appellants share a common interest. The complaint

identifies appellants’ property, in part, as follows: (1) an

“absolute and exclusive ownership interest in the right to

drill, develop, and produce the gas and oil reservoirs, covering

approximately 1,471 acres in Washington County, Ohio and 2,317

acres in Athens County, Ohio, along with an ownership interest

in the equipment, business infrastructure, and manpower to

commercially develop gas and oil”; (2) an “absolute and

exclusive mineral ownership interests give [appellants] the

rights to drill, develop, produce, remove, commercialize, and/or WASHINGTON, 23CA5

44 sell gas and oil, among other rights”; and (3) an “absolute and

exclusive ownership interests also give [appellants] the rights

to lease and/or sublease their rights to drill, develop,

produce, remove commercialize, and/or sell gas and oil.”

{¶60} These allegations provide Redbird notice “of the

property that was allegedly damaged” and adequately alleges that

“[a]ppellants own the underlying mineral interests that

[a]ppellees allegedly damaged.” And, contrary to JDDC’s

argument, this allegation also identifies “who owns the mineral

rights that have been damaged in order to establish who has

standing to sue.” The complaint alleges that appellants

collectively own “the right to drill, develop, and produce the

gas and oil reservoirs” located beneath their property.

{¶61} Consequently, we believe that Redbird’s and JDDC’s

standing arguments are without merit. The trial court thus

erred by dismissing appellants’ complaint for lack of standing.

CAUSATION

{¶62} Appellants next assert that the trial court erred by

determining that the complaint fails to adequately allege that

appellees’ conduct was the proximate cause of appellants’

injury. They contend that the court wrongly required them “to WASHINGTON, 23CA5

45 establish, or even notice, proximate cause regarding which

defendants damaged which wells, or when and how they did it, as

a prerequisite to discover an actionable claim for damage to

development of the mineral estate as a whole.” Appellants argue

that the trial court’s finding is contrary to the complaints’

“allegations that the entirety of the enumerated mineral acreage

can no longer be developed, commercialized, or liquidated as a

consequence of the defendants’ collective, regional flooding of

the subsurface.” They further claim that the trial court

improperly imposed an evidentiary-pleading standard rather than

a notice-pleading standard.

{¶63} Appellees Redbird, Tallgrass, and JDDC contend that

appellants’ complaint fails to sufficiently allege proximate

cause because the complaint does not contain specific facts to

connect each appellee’s operations to appellants’ damages.7

7 Proximate cause is one element of the causes of action contained in appellants’ complaint. See Hester v. Dwivedi, 89 Ohio St.3d 575, 583 (2000) (“The law of negligence does not hold a defendant liable for damages that the defendant did not cause.”); Misseldine v. Corporate Investigative Serv., Inc., 2003-Ohio-2740, ¶ 31 (8th Dist.) (“the plaintiff must prove that the trespass proximately caused that for which compensation is sought and the amount of those damages”); Gaines v. Village of Wyoming, 147 Ohio St. 491, 498 (1947) (“It must also be shown by WASHINGTON, 23CA5

46 {¶64} The proximate-cause rule limits “‘legal responsibility

. . . to those causes which are so closely connected with the

result and of such significance that the law is justified in

imposing liability.’” Johnson v. Univ. Hosps. of Cleveland, 44

Ohio St. 3d 49, 57 (1989), quoting Prosser & Keeton at 264.

“Proximate causation has been described as ‘some reasonable

connection between the act or omission of the defendant and the

damage the plaintiff has suffered.’” Queen City Terminals, Inc.

v. Gen. Am. Transp. Corp., 73 Ohio St.3d 609, 618 (1995),

quoting Prosser & Keeton, The Law of Torts 263, Section 41 (5

Ed.1984). An act is a proximate cause of an injury when the

injury sustained is “‘“the natural and probable consequence of

the”’” act. Jeffers v. Olexo, 43 Ohio St.3d 140, 143 (1989),

quoting Ross v. Nutt, 177 Ohio St. 113, 114 (1964), quoting

Miller v. Baltimore & Ohio Southwestern RR. Co., 78 Ohio St.

309, 325 (1908); see also Strother v. Hutchinson, 67 Ohio St.2d

282, 287 (1981), quoting Clinger v. Duncan, 166 Ohio St. 216,

222 (1957) (“‘[W]here an original act is wrongful or negligent

the evidence that the injury incurred was the proximate result of the maintenance of such nuisance.”). WASHINGTON, 23CA5

47 and in a natural and continuous sequence produces a result which

would not have taken place without the act, proximate cause is

established . . . ’”)

{¶65} “Probable,” as used in the proximate-cause rule, does

not mean “‘more likely than not.’” Gedeon v. E. Ohio Gas Co.,

128 Ohio St. 335, 340 (1934); see also Black’s (defining

“probable” to mean “[l]ikely to exist, be true, or happen”).

Instead, in the proximate-cause context, “probable” means “‘not

unlikely,’ or ‘such a chance of harm as would induce a prudent

man not to run the risk; such a chance of harmful result that a

prudent man would foresee an appreciable risk that some harm

would happen.’” Gedeon, 128 Ohio St. at 340–41, quoting Smith,

Legal Cause in Actions of Tort, 25 Harv.L.Rev. 103, 116 (1911)

{¶66} Moreover, “[t]here may be more than one proximate

cause of an injury.” Taylor v. Webster, 12 Ohio St.2d 53, 57

(1967). Thus, a tortfeasor is not relieved from liability

simply because “some other act unites with the original act to

cause injury.” Clinger, 166 Ohio St. at 223; see generally

Queen City Terminals, 73 Ohio St.3d at 617, citing Pang v.

Minch, 53 Ohio St.3d 186 (1990) (“the ‘substantial factor’ test

is used to determine liability when factors other than the WASHINGTON, 23CA5

48 negligence of the tortfeasor may have caused the plaintiff’s

damages.”)

{¶67} Ordinarily, proximate cause is a question of fact for

a jury. Strother, 67 Ohio St.2d at 288 (1981), citing Clinger,

166 Ohio St. at 223; accord Ornella v. Robertson, 14 Ohio St.2d

144, 151 (1968) (“It is because what constitutes a ‘natural and

continuous sequence’ is insusceptible of determination other

than in the context of a particular case that the issue of

proximate cause is ordinarily one for determination by the

jury.”). Consequently, “the analysis of proximate cause and

damages [is] ‘not a matter of proof at the pleading stage; it is

a matter for trial or, perhaps, for summary judgment if the

facts are undisputed.’” Resor v. Dicke, 2023-Ohio-4087, ¶ 28

(3d Dist.), quoting Sacksteder, 2012-Ohio-4452, at ¶ 57 (2nd

Dist.).

{¶68} In the case at bar, we believe that appellants’

complaint sufficiently alleges that their injury is the natural

and probable result of appellees’ conduct and, hence, that

appellees’ conduct is a proximate cause of their injury.

Appellants’ complaint uses the language from the proximate-cause

rule stated above and charges that appellees’ actions are WASHINGTON, 23CA5

49 proximate causes of appellants’ injury. For example,

appellants’ negligence claim alleges that appellees’ negligent

conduct “caused waste fluid and/or other harmful contaminants to

enter into and significantly and/or irreparably or permanently

impair and damage the quality and commercial viability of gas

and oil reservoirs, [appellants’] Property, and the Bethel

Wells” and that appellees’ “acts and/or omissions . . . were and

continue to be, the direct and proximate cause of damages to

[appellants] and the Property.”

{¶69} Appellants’ negligence per se claim likewise alleges

that appellees’ violations of “Ohio laws and regulations were a

direct and proximate cause of waste fluid and/or other harmful

contaminants entering into and significantly and/or irreparably

or permanently impairing and damaging the quality and commercial

viability of gas and oil reservoirs, [appellants’] Property, and

the Bethel Wells” and that “Defendants’ acts and/ or omissions

proximate cause of damages to [appellants] and the Property as

more fully set forth in Count VIII below.”

{¶70} Appellants’ trespass claim similarly alleges that

appellees’ conduct has “caused waste fluid to enter upon . . . WASHINGTON, 23CA5

50 [appellants’] Property” and that appellees’ “unauthorized and

unpermitted entry upon the Property in the possession of

[appellants] has directly caused physical damage to

[appellants’] Property . . . and actual interference with the

reasonable and foreseeable use of [appellants’] Property, along

with other damages.”

{¶71} Appellants’ nuisance claim also alleges that

appellees’ “actions in creating this nuisance were, and continue

to be, the direct and proximate cause of damages to [appellants]

and the Property.”

{¶72} Furthermore, appellants’ conversion claim asserts that

appellees’ “conversion of [appellants’] Property has been, and

continues to be, the direct and proximate cause of damages to

{¶73} These allegations suffice for purposes of notice

pleading. See Ferchill v. Beach Cliff Bd. of Trustees, 2005-

Ohio-3475, ¶ 8-9 (8th Dist.) (complaint sufficiently alleged

proximate cause when it stated, “As a direct and proximate

result of the conduct of the Defendants, Plaintiffs John and

Sharon Ferchill were deprived of the use and enjoyment of their

property.”); see also Beretta, 2002-Ohio-2480, at ¶ 29 WASHINGTON, 23CA5

51 (“Appellant was not required to allege with specificity that

particular guns were defective and as a result caused particular

injuries.”); id. at ¶ 24, quoting James v. Arcadia Machine &

Tool, N.J.Super. No. ESX–L–6–59–99, 26–27 (Dec. 11, 2001)

(“‘With no more than paper allegations and a complete absence of

discovery, it would be manifestly unfair to bar the Plaintiff[s]

[Newark and its mayor] from attempting to present appropriate

evidence to bridge the gap between breach of duty and

damages.’”); see also James v. Arms Tech., Inc., 359 N.J.Super.

291, 312 (App. Div. 2003) (quoting James v. Arcadia Machine &

Tool and concluding that the plaintiff’s complaint,

“[i]ndulgently read,” adequately alleged proximate cause when it

asserted that the “defendants purposely or negligently flood the

gun market, knowing that their steady supply of guns will feed

or facilitate the illegal sale of weapons to criminals and other

unlawful users” and that the “defendants individually and

collectively failed to develop and in fact discourage the

development of reasonable safeguards over the distribution

scheme, and that defendants refuse to oversee or supervise the

control of handgun distribution in order to prevent the

foreseeable channeling of guns to such an illegal market”). We WASHINGTON, 23CA5

52 emphasize that “at this posture of the case, we are not

concerned with” appellants’ “ability to prove the facts as

alleged in the complaint.” James v. Arms Tech., Inc., 359

N.J.Super. at 312. Instead, the question is whether appellants’

complaint satisfies Ohio’s notice-pleading rule.

{¶74} Therefore, contrary to appellees’ innuendos,

appellants’ complaint need not recite scientific facts to prove

that appellees’ conduct is, in fact, the proximate cause of

appellants’ injury. Requiring a complaint to recite scientific

proof is inconsistent with notice pleading. Moreover, some of

the evidence that appellants may need to prove their claims may

be in appellees’ possession. See York, 60 Ohio St.3d at 145

(“[v]ery often, the evidence necessary for a plaintiff to

prevail is not obtained until the plaintiff is able to discover

materials in the defendant’s possession.”).

{¶75} Furthermore, we do not agree with Tallgrass’s argument

that appellants’ complaint must use the phrasing from Queen City

Terminals and precisely allege “‘some reasonable connection

between the act or omission of the defendant and the damage the

plaintiff has suffered.’” 73 Ohio St.3d at 618, quoting Prosser

& Keeton at 263. This “reasonable connection” rule simply is WASHINGTON, 23CA5

53 another way of explaining the meaning of “proximate cause.” See

id., quoting Prosser & Keeton (“Proximate causation has been

described as ‘some reasonable connection between the act or

omission of the defendant and the damage the plaintiff has

suffered.’”); see also Johnson, 44 Ohio St.3d at 57, quoting

Prosser & Keeton at 264 (“‘Proximate cause’—in itself an

unfortunate term—is merely the limitation which the courts have

placed upon the actor’s responsibility for the consequences of

the actor’s conduct.’”). This “reasonable connection” rule is

not an independent element that must be pled in a complaint in

order to survive a Civ.R. 12(B)(6) motion to dismiss.

{¶76} Additionally, as we noted above, before the 1970

enactment of “the Ohio Rules of Civil Procedure in 1970, this

state’s civil practice required verified and particularized

pleadings.” Poulos v. Parker Sweeper Co., 44 Ohio St.3d 124,

125 (1989). However, “[w]ith the advent of the Modern Courts

Amendment and notice pleading, the Civil Rules provided for

extensive pretrial discovery and disclosure of facts within the

knowledge and control of the litigants. The purpose of these

reforms was to place the respective litigants in parity, avoid

‘surprise,’ and encourage settlement of controversies prior to WASHINGTON, 23CA5

54 trial.”8 Id. at 125–26. The notice-pleading standard does not,

therefore, require a plaintiff to precisely explain the specific

evidence that supports each claim for relief. Consequently,

appellants need not allege proximate cause with particularity.

{¶77} Furthermore, as appellants correctly assert, their

complaint need not meet evidentiary burdens of proof, like the

8 One court has explained the underlying philosophy of the discovery process as follows:

The philosophy of discovery as contained in the Ohio Civil Rules is basically one that affords liberal rights to discovery so that the basic facts may become known to all the parties prior to the time when the action comes on for trial. This includes the procuring of information which of itself may not be admissible in Court but which in turn may lead to admissible evidence. This philosophy is founded upon the theory that all parties should be entitled to become aware of all the facts pertaining to any particular occurrence, so that a lawsuit may be determined on the presentation of all of the facts as distinguished from being determined only on a presentation of such facts as may be within the knowledge of one party. This philosophy is written into the rules so that it will be possible for all parties to become aware of all facts and that an unjust disposition will not result because it was impossible for one of the parties to learn the truth. It is the function of counsel for each side of a lawsuit to diligently attempt to ascertain all the facts in connection with an occurrence and, of course, to have knowledge of all the applicable law.

Jira v. Erie Lackawanna R. Co., 25 Ohio Misc. 161, 165–66 (Ohio Com.Pl.1970). WASHINGTON, 23CA5

55 standard identified in Pang v. Minch, to survive a motion to

dismiss. In Pang, the court discussed § 433B(1) and § 433B(2)

of the Restatement. Section 433B(1) provides as follows: “‘(1)

Except as stated in Subsections (2) and (3), the burden of proof

that the tortious conduct of the defendant has caused the harm

to the plaintiff is upon the plaintiff.’” Pang, 559 N.E.2d at

1324.9 The court observed that § 433B(1)

“states the general rule as to the burden of proof on the issue of causation. As on other issues in civil cases, the plaintiff is required to produce evidence that the conduct of the defendant has been a substantial factor in bringing about the harm he has suffered, and to sustain his burden of proof by a preponderance of the evidence. This means that he must make it appear that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the harm.”

Id., quoting 2 Restatement of the Law 2d, Torts 442, § 433B(1),

Comment a (1965).

{¶78} Based upon this provision of the Restatement, the

court held:

[W]here a plaintiff suffers a single injury as a result of the tortious acts of multiple defendants, the burden of proof is upon the plaintiff to demonstrate that the conduct of each defendant was a substantial factor in producing the harm. See Porterie v. Peters (1975), 111

9 The pinpoint citation for the Ohio State Reports, Third Series is not available on Westlaw. WASHINGTON, 23CA5

56 Ariz. 452, 455–456, 532 P.2d 514, 517–518; Richardson v. Volkswagenwerk, A.G. (W.D.Mo.1982), 552 F.Supp. 73, 82– 83. Once this burden has been met, a prima facie evidentiary foundation has been established supporting joint and several judgments against the defendants. Thereafter, the burden of persuasion shifts to the defendants to demonstrate that the harm produced by their separate tortious acts is capable of apportionment.

Id.; accord Nichols v. Hanzel, 110 Ohio App.3d 591, 603 (4th

Dist.1996).

The Pang court held that the language in the Restatement

place[s] upon the plaintiff the burden to demonstrate that he has suffered an injury and that the tortious act of each defendant was a substantial cause in producing that injury. Once this burden has been met, it is the responsibility of the defendants to apportion the harm if joint and several liability is to be avoided.

Pang, 559 N.E.2d at 1325.

{¶79} Pang did not, however, discuss whether the plaintiff’s

complaint must satisfy this evidentiary burden. Instead, the

plaintiff’s case in Pang was tried before a jury, and the

question on appeal concerned evidentiary burdens at trial, not

pleading burdens placed upon a plaintiff alleging that one or

more tortfeasors caused the plaintiff’s injuries.

{¶80} Furthermore, the Ohio Supreme Court later held that

“[t]he determination of whether an actor’s conduct was a WASHINGTON, 23CA5

57 substantial factor in producing the plaintiff’s injury is a

question of fact to be determined by the trier of fact.” Queen

City Terminals, 73 Ohio St.3d at 618, citing Baldridge v. Wright

Gas Co., 154 Ohio St. 452 (1951), paragraph three of the

syllabus. Consequently, based upon the foregoing reasons, in

the case sub judice we believe that the trial court incorrectly

determined that appellants’ complaint failed to sufficiently

allege proximate cause.

JOINT AND SEVERAL LIABILITY

{¶81} Appellees further assert that appellants’ complaint

fails to give them adequate notice of the claims against them

because it lumps all appellees together rather than outline each

individual appellee’s purported wrongs. We do not agree.

{¶82} Ohio recognizes joint and several liability when the

negligence of two or more persons either combine or concur to

produce a single indivisible injury. See Schindler v. Std. Oil

Co., 166 Ohio St. 391 (1957), paragraph one of the syllabus

(“Where two or more persons, under circumstances creating

primary liability, either, by a combination of their actions,

create a nuisance causing damage or, by their concurrent

negligence, directly produce a single indivisible injury, and WASHINGTON, 23CA5

58 where it is impossible to measure or ascertain the amount of

damage created by any one of the persons, such persons, as

jointly and severally liable, may be joined as defendants in an

action, based upon such conduct, by one who has been damaged

thereby.”); Glass v. McCullough Transfer Co., 159 Ohio St. 505,

506 (1953), paragraph four of the syllabus (“Where damage or

injury is proximately caused by independent but concurrent

wrongful acts of two or more persons, such wrongdoers may be

joined as defendants even though they did not act in concert in

the execution of a common purpose.”); Meyer v. Cincinnati St.

Ry. Co., 157 Ohio St. 38, 41 (1952), quoting 1 Cooley on Torts

277, § 86 (4 Ed.) (“‘where the negligence of two or more persons

concur in producing a single, indivisible injury, then such

persons are jointly and severally liable, although there was no

common duty, common design or concerted action’”); see also

Larson v. Cleveland Ry. Co., 142 Ohio St. 20, 32 (1943) (“if

each of two railroads negligently manages its trains so as to

result in a collision, causing injury which results in death,

both may be joined as defendants in a single action”); Wery v.

Seff, 136 Ohio St. 307 (1940), paragraph five of the syllabus

(“When two or more persons, under circumstances creating primary WASHINGTON, 23CA5

59 accountability, directly produce a single, indivisible injury by

their concurrent negligence, they are jointly and severally

liable, even though there is no common duty, common design or

concerted action.”); see generally Black’s (defining “the joint-

and-several liability doctrine” as “[t]he principle that when

two or more persons cause an injury, each is liable for the full

amount of damages”); Pang, 559 N.E.2d at 1323, quoting 2

Restatement of the Law 2d, Torts 440, § 433A, Comment i (1965)

(“Where two or more causes combine to produce such a single

result, incapable of division on any logical or reasonable

basis, and each is a substantial factor in bringing about the

harm, the courts have refused to make an arbitrary apportionment

for its own sake, and each of the causes is charged with

responsibility for the entire harm.” [emphasis omitted.]).

{¶83} In Schindler, for example, the plaintiffs filed a

complaint against five oil companies, among others, and alleged

that the oil companies allowed gasoline to escape from their

properties and contaminated the plaintiffs’ property.

Schindler, 166 Ohio St. at 393 (“The present action was

instituted against all those who, at various times, either by

their creation of a nuisance or as a result of negligence, both WASHINGTON, 23CA5

60 in combination and severally, caused gasoline to permeate the

land of the plaintiffs and to pollute their wells”). The Ohio

Supreme Court determined that the plaintiffs’ complaint stated a

claim for joint and several liability when the complaint alleged

that the negligence of all “of the defendants caused a single

indivisible injury to plaintiffs.” Id. at 395. The court

further stated that a “reasonable inference” from the complaint

was that determining the amount of injury that “any single

defendant” caused was not possible. Id. The court further

noted that in reviewing the sufficiency of the allegations, the

question was not whether the plaintiffs had “proof to establish

the claims” but whether the complaint adequately alleged joint

and several liability. Id.

{¶84} In the case before us, even if appellants’ complaint

does not echo the same language as Schindler, we believe the

complaint nonetheless contains sufficient allegations to

indicate that appellants are seeking to hold appellees jointly

and severally liable for their injuries. In fact, the complaint

alleges that appellees are “jointly and severally” liable.

Appellants have asserted their claims for relief against all

appellees because they essentially have alleged that appellees’ WASHINGTON, 23CA5

61 wrongful acts caused a single, indivisible injury to appellants.

At the very least, the complaint gives rise to a reasonable

inference that appellants have sufficiently alleged that

appellees are jointly and severally liable for appellants’

injuries. See generally Jackson v. Glidden Co., 98 Ohio App.3d

100, 107 (8th Dist.1995) (“where the allegations of the

complaint are taken as true, the appellants’ amended complaint

states that the appellees committed tortious acts and that the

appellants were injured as the proximate result of those acts. .

. . The appellants have set forth sufficient allegations to

withstand a motion to dismiss, even though all potential

defendants have not been joined in the action.”).

{¶85} Consequently, we do not agree with appellees’

arguments that appellants must detail each appellee’s individual

wrongful conduct. Appellants did not allege that each appellee

engaged in separately identifiable conduct or that they have

caused separately identifiable injuries. Moreover, this appeal

involves 14 appellees, and 15 defendants remain named in the

complaint. If appellants were required to outline the same

claims 15 times when seeking to hold the defendants jointly and

severally liable for appellants’ injury, the complaint could be WASHINGTON, 23CA5

62 lengthy beyond reason. Furthermore, appellees’ argument defies

the principle that a complaint need only contain a short and

plain statement showing that the pleader is entitled to relief.

{¶86} We therefore do not agree with appellees that

appellants’ complaint fails the notice-pleading test by alleging

that appellees are jointly and severally liable for appellants’

injury.

TRESPASS

{¶87} None of the parties raised any specific arguments on

appeal regarding appellants’ trespass claim. Moreover, during

the trial court proceedings, appellees appeared to have argued

that appellants’ trespass claim fails to state a claim because

the complaint fails to establish (1) proximate cause between

appellants’ damages and appellees’ conduct, and (2) standing.

{¶88} On appeal, appellees likewise do not specifically

argue that the complaint fails to state a trespass claim and

limit their arguments to the proximate-cause and standing

issues. As we determined above, however, appellants’ complaint

adequately alleges that appellees’ conduct proximately caused

their injuries and sufficiently shows that appellants have

standing to sue. WASHINGTON, 23CA5

63 {¶89} Furthermore, none of the appellees appear to dispute

the principle that “a mineral owner may have a valid trespass

claim when the injected waste migrates across property lines and

unreasonably interferes with access to recoverable minerals,

such as oil and gas.” Anderson, Subsurface “Trespass”: A Man’s

Subsurface Is Not His Castle, 49 Washburn L.J. 247, 271 (2010);

see also Chance v. BP Chemicals, Inc., 77 Ohio St.3d 17, 22 and

26 (1996) (in a trial involving the “deepwell disposal of

wastes,” appellants attempted to establish an “indirect”

trespass, which “was complicated by the nature of the invasion

of property that appellants were attempting to prove”).

{¶90} Consequently, the trial court incorrectly dismissed

appellants’ trespass claim.

NUISANCE

{¶91} Appellants argue that the trial court incorrectly

determined that their nuisance claim failed to state a claim

upon which relief can be granted. Appellants state that the

trial court wrongly determined that the complaint must allege

that appellees’ conduct in creating a nuisance caused appellants

to suffer “physical discomfort.” Appellants contend that

damages for nuisance are not limited to those damages resulting WASHINGTON, 23CA5

64 from physical discomfort. Appellants assert that the law of

nuisance also compensates property owners for the decrease in

the value of their property and for the loss of use and

enjoyment of their property. Appellants state that their

complaint alleged that appellees “have restricted and infringed

upon [appellants’] use and enjoyment of the [p]roperty, creating

a qualified nuisance for [appellants].”

{¶92} Tallgrass and JDDC maintain that appellants must

allege “physical discomfort” to properly plead a nuisance claim.

Tallgrass also reiterates a recurring theme: Appellants’

nuisance claim fails to detail how each appellee “intentionally,

reckless, or negligently invaded [appellants’] interest in the

use and enjoyment of [their] property.”

“‘Nuisance’ is a term used to designate the wrongful invasion of a legal right or interest. It comprehends not only the wrongful invasion of the use and enjoyment of property, but also the wrongful invasion of personal legal rights and privileges generally.” Taylor v. Cincinnati (1944), 143 Ohio St. 426, 431–432, 28 O.O. 369, 55 N.E.2d 724. For there to be an action for nuisance, the injury must be real, material, and substantial. Eller v. Koehler (1903), 68 Ohio St. 51, 55, 67 N.E. 89.

Banford v. Aldrich Chem. Co., 2010-Ohio-2470, ¶ 17. WASHINGTON, 23CA5

65 {¶93} In their complaint, appellants have alleged a

“qualified nuisance.” “[A] qualified nuisance or nuisance

dependent upon negligence consists of anything lawfully but so

negligently or carelessly done or permitted as to create a

potential and unreasonable risk of harm, which, in due course,

results in injury to another.” Taylor at paragraph three of the

syllabus. Thus, “‘a civil action based upon the maintenance of

a qualified nuisance is essentially an action in tort for the

negligent maintenance of a condition, which, of itself, creates

an unreasonable risk of harm, ultimately resulting in injury.’”

Allen Freight Lines, Inc. v. Consol. Rail Corp., 64 Ohio St.3d

274, 275–76 (1992), quoting Rothfuss v. Hamilton Masonic Temple

Co., 34 Ohio St.2d 176, 180 (1973).

{¶94} “Damages for nuisance may include diminution in the

value of the property, costs of repairs, loss of use of the

property, and compensation for annoyance, discomfort, and

inconvenience.” (Citations omitted.) Banford, 2010-Ohio-2470,

at ¶ 17. “Each of these elements of recovery represents a

separate and distinct type of damage, and the absence of one

does not preclude recovery for the others.” (Citations

omitted.) Athens Co. Regional Planning Comm. v. Simms, 2006- WASHINGTON, 23CA5

66 Ohio-2342, ¶ 18 (4th Dist.); Phillips Petroleum Co. v. Ruble,

126 P.2d 526, 527 (Okla. 1942), quoting Oklahoma City v. Eylar,

61 P.2d 649 (Okla. 1936), paragraph three of the syllabus (“‘The

personal inconvenience, annoyance, and discomfort to the

occupant of real estate caused by the maintenance by another of

a temporary nuisance in the immediate vicinity of said real

estate is a separate and distinct element of damage from that of

the depreciation of the usable or rental value of the real

estate occupied; the measure of such damages being reasonable

compensation for the injury.’”); accord Frey v. Queen City Paper

Co., 79 Ohio App. 64, 71 (2nd Dist.1946) (quoting Phillips

Petroleum with favor).

{¶95} If a plaintiff requests “damages for annoyance and

discomfort in a nuisance claim,” the “plaintiff must establish

that the nuisance caused physical discomfort.” Banford, 2010-

Ohio-2470, at ¶ 28. The Banford court explained that “[a]

physical component is implied in much of [the] case law that

discusses damages for annoyance and discomfort.” Id. at ¶ 26.

The court observed that cases have allowed annoyance and

discomfort damages for a nuisance when “the nuisance had

affected a person’s senses,” such as “sight, sound, smell, WASHINGTON, 23CA5

67 hearing, or touch,” and resulted in “physical discomfort.”

(Citations omitted.) Id.

{¶96} In the case at bar, appellants did not limit their

request for nuisance damages to annoyance and discomfort.

Instead, they also requested damages for the loss in value and

the loss of use and enjoyment of the property, among many other

types of losses. Thus, even if the complaint fails to give

appellees adequate notice that appellants suffered physical

discomfort, the absence of this allegation does not mean that

appellants’ complaint fails to state a nuisance claim.

Appellants’ complaint otherwise gives appellees adequate notice

that appellants are pursuing a nuisance claim and seeking

nuisance-related damages. Appellants’ complaint alleges that

appellees

failed to exercise due care and were negligent in the operation and/or maintenance of their Injection Wells so as to create a potential and unreasonable risk of harm that waste fluid would contaminate and pollute . . . [appellants’] Property, which in due course occurred and resulted in harm, injury, and/or damage to [appellants] and [appellants’] Property.

Appellants’ nuisance claim thus alleges that appellees were

negligent and that this negligence created a potential and

unreasonable risk of harm that injured appellants’ property. WASHINGTON, 23CA5

68 Taylor, 143 Ohio St. 426, at paragraph three of the syllabus.

Moreover, appellants’ negligence claim identifies more than 30

ways in which appellees were negligent. Allen Freight Lines, 64

Ohio St.3d at 275–76. Contrary to Tallgrass’s argument,

appellants’ complaint need not precisely detail how each

individual appellee separately and “intentionally, reckless, or

negligently invaded [appellants’] interest in the use and

enjoyment of [their] property.”

{¶97} The complaint further claims that appellees’ wrongful

conduct has “restricted and infringed upon [appellants’] use and

enjoyment of the Property, creating a qualified nuisance for

[appellants].”

Appellants’ complaint also asserts that appellees’

Injection Well operations have imposed a nuisance upon [appellants] in the form of financial, environmental, and emotional hardship inasmuch as the [appellees’] Injection Well operations have overtaken and damaged gas and oil production on [appellants’] Property with a toxic substance that is regulated under Ohio law to prevent human and environmental contact, thereby exposing [appellants’] Property, including but not limited to those impacted Bethel Wells, to additional regulatory requirements where said requirements would otherwise not have been imposed.

{¶98} The complaint additionally claims that (1) the

nuisance is ongoing, (2) the injury to appellants’ property is WASHINGTON, 23CA5

69 likely permanent, and (3) appellees’ conduct is the proximate

cause of the injuries that they have sustained.

{¶99} In sum, appellants’ nuisance allegations suffice to

state a claim upon which relief can be granted. See Ogle, 2008-

Ohio-7042, at ¶ 8 (4th Dist.) (complaint satisfied notice

pleading for nuisance claim when the plaintiffs claimed “that

the location, size, and appearance of the proposed

telecommunications tower would create a risk of physical harm

and cause diminution in the fair-market value of their

property”).

{¶100} Consequently, we agree with appellants that the trial

court erred by dismissing their nuisance claim.

RES IPSA LOQUITUR

{¶101} Appellants argue that the trial court incorrectly

dismissed their res ipsa loquitur claim. They contend that even

if res ipsa loquitur is not an independent cause of action, they

still were “free to notice that the evidence will satisfy the

res ipsa elements.”

{¶102} Appellees assert that the trial court properly

dismissed this claim because the res ipsa loquitur doctrine is

not an independent cause of action, but an evidentiary rule. WASHINGTON, 23CA5

70 {¶103} “The doctrine of res ipsa loquitur is not a

substantive rule of law furnishing an independent ground for

recovery.” Jennings Buick, Inc. v. City of Cincinnati, 63 Ohio

St.2d 167, 169 (1980). Instead, the doctrine “is an evidentiary

rule which permits, but does not require, the jury to draw an

inference of negligence when the logical premises for the

inference are demonstrated.” Id. Thus, the doctrine “does not

alter the nature of the plaintiff’s claim in a negligence

action; it is merely a method of proving the defendant’s

negligence through the use of circumstantial evidence.” Id. at

170.

{¶104} A plaintiff must establish two elements for the res

ipsa loquitur doctrine to apply:

“(1) [t]hat the instrumentality causing the injury was, at the time of the injury, or at the time of the creation of the condition causing the injury, under the exclusive management and control of the defendant; and (2) that the injury occurred under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed.” Hake v. George Wiedemann Brewing Co. (1970), 23 Ohio St.2d 65, 66–67, 52 O.O.2d 366, 262 N.E.2d 703; Fink [v. New York Cent. R. Co.], 144 Ohio St. 1, 28 O.O. 550, 56 N.E.2d 456 [(1944)].

Estate of Hall v. Akron Gen. Med. Ctr., 2010-Ohio-1041, ¶ 27. WASHINGTON, 23CA5

71 {¶105} Furthermore, a plaintiff need not “specifically plead

the doctrine in order to invoke it,” and “specific allegations

of negligence in the complaint [do not] foreclose reliance upon

it.” Jennings Buick, 60 Ohio St.3d at 169; see Fink v. New York

Cent. R. Co., 144 Ohio St. 1, 7 (1944) (“if the allegations of

the petition and the proof in support thereof call for the

application of the rule it should be applied irrespective of

whether the petition contains allegations of specific acts of

negligence”).

{¶106} Additionally, nothing appears to prohibit a plaintiff

from pleading (1) a negligence claim using specific acts of

negligence, and (2) an alternative negligence claim using an

inference of negligence. See Honey v. George Hyman Const. Co.,

63 F.R.D. 443, 451, 18 Fed.R.Serv.2d 1347 (D.D.C.1974) (“a

plaintiff may always plead inconsistent causes of action or in

the alternative, and . . . may rely on both res ipsa loquitur

and proof of specific acts of negligence”); 70 Ohio Jur. 3d

Negligence § 157 (“Under the analogous Federal Rule, it is

permissible to plead both specific acts of negligence and res

ipsa loquitur although subsequent proof of such specific acts

would negate the possibility of recovery on a res ipsa loquitur WASHINGTON, 23CA5

72 theory.”). Indeed, Civ.R. 8(E)(2) allows a plaintiff to “set

forth two or more statements of a claim . . . alternately or

hypothetically, either in one count . . . or in separate counts

. . .”

{¶107} In the case sub judice, appellants’ complaint sets

forth a negligence claim using specific acts of negligence. The

complaint’s “res ipsa loquitur” claim alleges the elements

needed to invoke the inference of negligence, but does not

present the claim as an alternate negligence claim. We

recognize that the res ipsa loquitur doctrine does not stand

alone as an independent cause of action. See Jennings Buick, 63

Ohio St.2d at 169. The proper remedy is not outright dismissal,

however. Instead, on remand, the trial court should allow

appellants an opportunity to amend their pleading to plead an

alternate negligence claim that invokes the inference of

negligence that the res ipsa loquitur doctrine provides. We

again note, however, that failing to plead a negligence claim

using the res ipsa loquitur doctrine does not preclude invoking

the doctrine at a later point in the proceedings.

CONVERSION WASHINGTON, 23CA5

73 {¶108} Appellants also argue that the trial court incorrectly

determined that their conversion claim failed to state a claim

upon which relief could be granted. Appellants contend that

“[t]he court’s findings on conversion ignore decisions

permitting mineral conversion claims and ignore the conversion

of [appellants’] well infrastructure (equipment, tools, casing,

etc.) that defendants have effectively converted into

repositories for their injected waste-fluids.”

{¶109} Appellees assert that appellants’ conversion claim

fails to allege that appellees converted appellants’ personal

property. They argue that appellants allege that appellees

converted appellants’ real property, i.e., their mineral estate.

Appellees thus contend that appellants’ conversion claim fails

to state a claim upon which relief can be granted.

{¶110} Conversion is “‘the wrongful exercise of dominion over

property to the exclusion of the rights of the owner, or

withholding it from his possession under a claim inconsistent

with his rights.’” Allan Nott Ents, Inc. v. Nicholas Starr

Auto, L.L.C., 2006-Ohio-3819, ¶ 36, quoting Joyce v. Gen. Motors

Corp., 49 Ohio St.3d 93, 96 (1990). “To prevail on a conversion

claim, a plaintiff must show: (1) ownership or right to WASHINGTON, 23CA5

74 possession of the property at the time of the conversion; (2)

defendant’s conversion by a wrongful act or disposition of the

plaintiff’s property right, and (3) damages.” Bender v. Logan,

2016-Ohio-5317, ¶ 74 (4th Dist.), citing Mitchell v. Thompson,

2007-Ohio-5362, ¶ 37 (4th Dist.), and Orebaugh v. Am. Family

Ins., 2007-Ohio-3891, ¶ 27 (4th Dist.).

{¶111} Additionally, conversion only applies to personal

property, not real property. Sandy v. Rataiczak, 2008-Ohio-

6212, ¶ 9 (7th Dist.); First Fed. Bank v. Angelini, 2007-Ohio-

6153, ¶ 8 (3d Dist.); see also Ernst, Ohio Tort Law, 2d, § 37:1

(2023) (“Conversion is the intentional exercise of dominion or

control over a chattel which so seriously interferes with the

right of another to control it that the actor may be justly

required to pay the other the full value of the chattel.”).

Minerals, like oil and gas, that remain “in place are the same

as any part of the realty.” Pure Oil Co. v. Kindall, 116 Ohio

St. 188, 201 (1927); see also Peppertree Farms, L.L.C. v.

Thonen, 2022-Ohio-395, ¶ 27, quoting 3 Kuntz, A Treatise on the

Law of Oil and Gas, Section 38.2 (2021) (“‘it is generally

recognized that unaccrued royalty is properly classified as real

property, and the right to receive unaccrued royalty has been so WASHINGTON, 23CA5

75 classified for a wide variety of purposes’”); Browne v. Artex

Oil Co., 2019-Ohio-4809, ¶ 22 (“Ohio is in line with the general

consensus among the states that an oil and gas lease creates a

real-property interest.”). Thus, subsurface minerals are

considered part of the real estate until extraction. Schlabach

v. Kondik, 2017-Ohio-8016, ¶ 23 (7th Dist.). Minerals “become

personal property immediately upon severance.” Id.; accord

Terteling Bros., Inc. v. Glander, 151 Ohio St. 236, 243 (1949)

(“Although land and minerals in place upon or beneath the land

are real property even though separately owned, the minerals

become personal property immediately upon severance.”); Yoder v.

Stocker & Sitler Oil Co., 1996 WL 251821, *11 (5th Dist. Feb.

26, 1996) (“upon its inevitable extraction, oil and gas becomes

personal property”); see also Waterloo Coal Co. v. Maynard, 1994

WL 675682, *4 (4th Dist. Nov. 8, 1994) (an action in trespass

lies for the wrongful removal of minerals or the wronged party

may sue for damages for conversion of the several minerals);

Athens & Pomeroy Coal & Land Co. v. Tracy, 22 Ohio App. 21, 26–

27 (4th Dist.1925) (a plaintiff may “sue for the damages

resulting from the conversion of the severed property. It is

the old action of trover. It presupposes the ownership by the WASHINGTON, 23CA5

76 plaintiff of the article severed from the real estate, as though

the severance had been accomplished by the owner himself, and

rests upon the fiction that the defendant had found, or

otherwise became possessed of, such chattel, and unlawfully

converted the same to his own use”).

{¶112} In the case at bar, appellants allege that appellees

converted appellants’ mineral reservoirs and have “interfered

with” appellants’ “dominion and/or control over the Bethel Wells

and [appellants’] chattel property” that they use “in connection

with the operation of the Bethel Wells.”

{¶113} To the extent that appellants have alleged conversion

of their mineral estate, which Ohio law considers to be real

property, their conversion claim fails to state a claim upon

which relief can be granted. Appellants’ conversion claim also

references “chattel property,” however. Thus, to the extent

that appellants allege that appellees have converted their

personal property, their conversion claim states a claim upon

which relief can be granted. Given that we must construe

appellants’ complaint so as to do substantial justice, Civ.R.

8(F), we believe that it arguably states a claim for conversion WASHINGTON, 23CA5

77 of their personal property. Therefore, the trial court erred by

dismissing appellants’ conversion claim.

EMOTIONAL DAMAGES

{¶114} Within their second assignment of error, appellants

assert that the trial court incorrectly dismissed their claims

for emotional damages and should have instead allowed them to

amend their pleading. For ease of discussion, we address the

issue within the context of appellants’ first assignment of

error.

{¶115} In their complaint, appellants listed all of the

damages that they collectively suffered as a result of

appellees’ alleged negligence, negligence per se, nuisance,

conversion, and trespass under one heading rather than stating

the damages within the context of each claim for relief. Some

of the claimed damages include (1) “inconvenience, distress,

anxiety, and/or emotional and mental anguish,” (2)

“inconvenience and discomfort caused by interference with the

peaceful possession and enjoyment of” their property, (3)

“discomfort and annoyance related to the loss of use and/or loss

of enjoyment and/or contamination of the Property, and/or” (4)

“loss of the quality of life [appellants] otherwise enjoyed.” WASHINGTON, 23CA5

78 {¶116} Appellees argue that the trial court correctly

dismissed appellants’ request for damages stemming from these

emotional harms because, as a business entity, Bethel Oil cannot

recover emotional damages.

{¶117} Even if appellees are correct that a business entity,

such as Bethel Oil, cannot recover damages for emotional harm,

see Patel v. AT&T, 1997 WL 39907, *2 (7th Dist. Jan. 30, 1997)

(“it affronts common sense to believe a corporation can suffer

emotional distress”), appellants’ listing of the damages that

they suffered is not a “claim for relief” subject to dismissal.

Instead, each item of alleged damages relates to one of the

causes of action listed in the preceding sections of the

complaint. Thus, appellants’ alleged damages are elements of

the claims for relief, not independent claims for relief. See,

e.g., Cromer v. Children’s Hosp. Med. Ctr. of Akron, 2015-Ohio-

229, ¶ 23, citing Menifee v. Ohio Welding Products, Inc., 15

Ohio St.3d 75, 77 (1984) (damages are one of the elements of a

negligence cause of action); RAE Assocs., Inc. v. Nexus

Communications, Inc., 2015-Ohio-2166, ¶ 30 (10th Dist.) (damages

are one of the elements of conversion cause of action); see

generally Binns v. Fredendall, 32 Ohio St.3d 244, 246 (1987) WASHINGTON, 23CA5

79 (“the emotional or psychiatric injuries which have arisen as a

proximate result of the defendant’s tortious act are compensable

under the traditional rule for recovery”). Because damages are

not an independent cause of action, the proper remedy was not to

dismiss appellants’ “claims” for emotional damages. Instead, as

we explain in our discussion of appellants’ second assignment of

error, the trial court should have permitted appellants to amend

their complaint to correct any ambiguity regarding their request

for emotional damages.

CONCLUSION

{¶118} In sum, we believe that appellants’ complaint does not

fail to state a claim. The complaint gives appellees sufficient

notice that appellants are alleging that appellees’ well-

injection operations have contaminated their mineral estate.

Furthermore, even if appellants’ complaint “could have been

written more artfully, . . . the degree of detail demanded by

[appellees] would require litigants to write a book when filing

legal actions.” Sacksteder, 2012-Ohio-4452, at ¶ 65 (2d Dist.).

{¶119} Once again, we emphasize that, in general, a Civ.R.

12(B)(6) motion is viewed with disfavor, rarely granted, and

reserved for those rare cases that cannot possibly succeed. WASHINGTON, 23CA5

80 Wilson, supra; Tri–State Computer Exchange, supra. The case sub

judice is not one of those cases.

{¶120} Accordingly, based upon the foregoing reasons, we

sustain appellants’ first assignment of error.

II

{¶121} In their second assignment of error, appellants assert

that the trial court abused its discretion when it denied their

motion to amend their complaint.

{¶122} “The decision of whether to grant a motion for leave

to amend a pleading is within the discretion of the trial

court.” Turner v. Cent. Local School Dist., 85 Ohio St.3d 95,

99 (1999). “‘[A]buse of discretion’ [means] an ‘unreasonable,

arbitrary, or unconscionable use of discretion, or * * * a view

or action that no conscientious judge could honestly have

taken.’” State v. Kirkland, 2014-Ohio-1966, ¶ 67, quoting State

v. Brady, 2008-Ohio-4493, ¶ 23. “An abuse of discretion

includes a situation in which a trial court did not engage in a

‘“sound reasoning process.”’” State v. Darmond, 2013-Ohio-966,

¶ 34, quoting State v. Morris, 2012-Ohio-2407, ¶ 14, quoting

AAAA Ents., Inc. v. River Place Community Urban Redevelopment

Corp., 50 Ohio St.3d 157, 161 (1990). The abuse of discretion WASHINGTON, 23CA5

81 standard is deferential and does not permit an appellate court

to simply substitute its judgment for that of the trial court.

Darmond at ¶ 34.

{¶123} “The general policy of Civ.R. 15(A) favors liberal

amendment of pleadings.” State ex rel. Reese v. Ohio Dept. of

Rehab. & Correction Legal Dept., 2022-Ohio-2105, ¶ 30; Salemi v.

Cleveland Metroparks, 2016-Ohio-1192, ¶ 11 (Civ.R. 15(A)

“mandate[s] that courts ‘shall freely give leave [to amend a

pleading] when justice so requires,’” and the Ohio Supreme Court

has a “liberal position on amendments”). Indeed,

[t]he spirit of the Civil Rules is the resolution of cases upon their merits, not upon pleading deficiencies. Civ.R. 1(B) requires that the Civil Rules shall be applied “to effect just results.” Pleadings are simply an end to that objective. The mandate of Civ.R. 15(A) as to amendments requiring leave of court, is that leave “shall be freely given when justice so requires.”

Peterson v. Teodosio, 34 Ohio St.2d 161, 175 (1973).

{¶124} Thus, a trial court ordinarily abuses its discretion

by denying a timely filed motion for leave to file an amended

pleading when the amendment would allow the pleading party to

“set forth a claim upon which relief can be granted.” Id.

Conversely, a trial court does not abuse its discretion by

denying a party leave to file an amended pleading when amending WASHINGTON, 23CA5

82 the pleading “would be futile.” State ex rel. McDougald v.

Greene, 2020-Ohio-3686, ¶ 20, citing ISCO Indus., Inc. v. Great

Am. Ins. Co., 2019-Ohio-4852, ¶ 52 (1st Dist.); see Wilmington

Steel Prods., Inc. v. Cleveland Elec. Illum. Co., 60 Ohio St.3d

120, 123 (1991) (“[W]here a plaintiff fails to make a prima

facie showing of support for new matters sought to be pleaded, a

trial court acts within its discretion to deny a motion to amend

the pleading.”). Additionally, the Ohio Supreme Court has

indicated that “‘absent a finding of bad faith, undue delay or

undue prejudice to the opposing party,’” a court should grant a

motion for leave to amend. State ex rel. Doe v. Capper, 2012-

Ohio-2686, ¶ 8, quoting Hoover v. Sumlin, 12 Ohio St.3d 1, 6

{¶125} In the case sub judice, as we discussed under

appellants’ first assignment of error, the trial court, at

appellees’ insistence, required appellants to meet a heightened

pleading standard that does not exist under Ohio Supreme Court

case law. Ohio’s notice-pleading standard does not require

appellants to allege particularized facts and does not, as

appellees insinuate, require appellants to cite the evidence to

support each claim for relief. Thus, as we stated above, the WASHINGTON, 23CA5

83 trial court erred by dismissing appellants’ complaint. To the

extent that appellants’ complaint contains pleading deficiencies

that we discussed above, on remand, the trial court should allow

appellants an opportunity to amend their complaint. At this

stage, nothing appears to indicate that to allow appellants to

amend their complaint would be futile.10

{¶126} As we suggested above, appellants’ complaint need not

resemble a scientific textbook full of facts, figures, and

expert testimony. Instead, Civ.R. 8(A) simply requires a short

and plain statement showing that appellants are entitled to

relief. Thus, on remand, to the extent appellants request leave

to amend their complaint, the amended complaint need not include

the level of detail that appellees have demanded throughout

these proceedings.

10 We point out that when a trial court’s denial of a motion for leave to amend a complaint “‘“can fairly be read to have been based on a determination that the amended complaint . . . would not withstand a motion to dismiss, the denial is a legal question that is reviewed de novo.”’” Gilliam v. Crowe, 2017- Ohio-5494, ¶ 8 (2d Dist.), quoting Marx v. Ohio State Univ. College of Dentistry, 1996 WL 87462, *3 (10th Dist. Feb. 27, 1996), quoting Rainer v. Westinghouse Elec. Corp., 65 F.3d 169, *2 (6th Cir. 1995). WASHINGTON, 23CA5

84 {¶127} Given that we have sustained appellants’ first

assignment of error and agreed that the trial court erred by

dismissing appellants’ complaint, we believe that appellants’

second assignment of error largely is moot. Because appellants’

initial complaint satisfies Ohio’s notice-pleading standard, as

we discussed above, appellants need not file an amended 63-page

complaint that contains detailed factual allegations. To the

extent any ambiguities exist regarding appellants’ conversion

claim and request for emotional damages, as we discussed above,

the trial court should give appellants an opportunity to amend

their complaint (and again, it need not include detailed factual

allegations).

{¶128} Additionally, if any doubt remains regarding

appellants’ pleading burden, we emphasize that on remand, the

liberal pleading rules that we outlined in this opinion govern,

not the heightened pleading standard that appellees cited in

their motions to dismiss and appellate briefs. Further, we

caution appellees not to present the trial court with misleading

case quotations when precedent from the Ohio Supreme Court is

available, as it widely is for Civ.R. 12(B)(6) motions to WASHINGTON, 23CA5

85 dismiss. Notably, appellees also do not cite any case authority

from this court to support their heightened pleading standard.

{¶129} Accordingly, based upon the foregoing reasons, we

overrule appellants’ second assignment of error as moot, reverse

the trial court’s judgment, and remand this matter for further

proceedings consistent with this opinion.

JUDGMENT REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. WASHINGTON, 23CA5

86 JUDGMENT ENTRY

It is ordered that the judgment be reversed and remanded for further proceedings consistent with this opinion. Appellants shall recover of appellees the costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Washington County Common Pleas Court to carry this judgment into execution.

A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Smith, P.J. & Wilkin, J.: Concur in Judgment & Opinion

For the Court

BY:__________________________ Peter B. Abele, Judge

NOTICE TO COUNSEL WASHINGTON, 23CA5

87 Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk. WASHINGTON, 23CA5

88 APPENDIX

MOTIONS TO DISMISS

Diversified

{¶130} Diversified, Nuverra, Heckmann, Deeprock Operating,

Deeprock Disposal, Brian Chavez, and Christyann Heinrich-Chavez

(Diversified/Deeprock) filed a joint motion to dismiss. They

argued that although appellants alleged that

Diversified/Deeprock “operate injection wells somewhere in

Washington County or Athens County, Ohio,” the complaint does

not further specify underlying facts to connect

Diversified/Deeprock’s operations with any of appellants’

alleged damages. Diversified/Deeprock claimed that the

complaint does not reveal “which of their injection wells, if

any, allegedly damaged which of [appellants’] property

interests.”

{¶131} Diversified/Deeprock also contended that appellants’

complaint fails to allege sufficient operative facts to give

them notice of the nature of the action. They argued that “[t]o

constitute fair notice, [appellants] must allege sufficient

underlying facts that relate to and support the alleged claim

and may not simply state legal conclusions.” They additionally WASHINGTON, 23CA5

89 asserted that notice pleading does not “eliminate the need for a

properly researched and factually supported cause of action.”

Bratton v. Adkins, 9th Dist. Summit No. 18136, 1997 WL 459979,

*1, citing Matter of Oak Creek Florists (S.D.Ohio 1988), 86 B.R.

531. Diversified/Deeprock argued that appellants’ complaint

does not contain “sufficient underlying facts” to give them

notice of “the basic ‘who’, ‘what’, ‘when’, and ‘where’ so they

may know at least the bare minimum about the claims against

them.”

{¶132} Diversified/Deeprock further asserted that (1) res

ipsa loquitur is not a separate cause of action, (2) appellants’

conversion claim fails to state a claim because Ohio law does

not recognize conversion of real property, and (3) Ohio law does

not recognize claims for a business entity’s emotional damages,

and thus, “any claims asserted by Bethel Oil & Gas, LLC for

‘emotional damages’ must be dismissed.”

Redbird

{¶133} Redbird argued that appellants lack standing because

they did not “allege ownership of any of the mineral interests”

that Redbird supposedly damaged. Redbird claimed that the

complaint does not (1) identify any of the appellants “as the WASHINGTON, 23CA5

90 actual owner” of the mineral interests or (2) “plead an actual

injury sufficient to establish standing.” Redbird contended

that “[b]ecause no [appellant] is identified as the actual owner

of the allegedly damaged mineral interests, no [appellant] has

suffered an injury in fact; thus, no [appellant] has standing to

bring this action.”

{¶134} Redbird further argued that appellants’ complaint

contains “opaque allegations” that “fall short of Ohio liberal

pleading standards.” Redbird claimed that appellants

essentially alleged only “that someone somehow damaged something

that [appellants] may or may not own” and that the allegations

thus fail to satisfy notice-pleading standards.

{¶135} Redbird also asserted that appellants’ complaint does

not set forth facts to establish a link between appellants’

alleged injuries and Redbird’s conduct. Redbird contended that

the complaint does not state what property has been damaged or

“how and when the property was damaged.” Redbird alleged that

aside from the B.P. Pinkerton #1 well, Redbird does “not know

which of its injection wells allegedly damaged which of

[appellants’] properties.” Redbird faulted appellants for WASHINGTON, 23CA5

91 failing to “plead a connection between any specific property

interest and an alleged source of the tortious conduct.”

Redbird stated that appellants’ “scattershot approach does not

satisfy basic notice pleading as it fails to identify the basic

‘who’, ‘what’, ‘when’, and ‘where’ so that [appellees] may know

at least the bare minimum regarding the claims against them.”

{¶136} Like the other defendants, Redbird also argued that

(1) res ipsa loquitur “is not a cognizable claim under Ohio law,

but only an evidentiary rule,” (2) appellants’ “conversion claim

fails because any mineral interests alleged to be owned by

[appellants] are interests in real property, not personal

property,” and (3) a business entity like Bethel Oil cannot

Reliable

{¶137} In its motion to dismiss, Reliable asserted that

appellants’ complaint only named one of its wells, the “Frost M”

well, and that this well “has not been active in over a year.”

Reliable additionally argued that “public records show that this

well in Rome Township, Athens County, is the only disposal well

Reliable owns in Ohio” and that this well is “more than thirteen

miles from any of the Bethel Oil wells listed in the Complaint.” WASHINGTON, 23CA5

92 {¶138} Reliable implored the trial court to evaluate

appellants’ complaint under the standard set forth in Twombly.

Reliable contended that Ohio’s “liberal pleading rules are not

an all-access pass to plaintiffs, allowing them to escape any

scrutiny at the motion to dismiss stage and proceed straight to

discovery.” Instead, Reliable asserted that under Twombly,

“[t]he factual allegations in the complaint must be sufficiently

detailed to provide a ‘plausible’ basis for relief.” Reliable

claimed that appellants’ complaint “fails this test for two

reasons. First, it fails to plausibly allege that wastewater

from Reliable’s distant disposal well reached [appellants’]

production wells. And second, it asserts claims that are

preempted by statute or are not recognized under Ohio law.”

{¶139} Reliable argued that appellants’ complaint “does not

provide any factual support.” Reliable faulted appellants for

failing to include facts such as “the geology of the area around

Reliable’s Frost M well to try to show that it shares similar

features to the Redbird #4 well” or to list “specific practices

or defects at the Frost M well that might allow wastewater to

escape containment.” Reliable asserted that the ODNR report

“found that the production contamination was due to unique WASHINGTON, 23CA5

93 geology around Redbird #4” and that this same geology “was

unlikely to be found near other local disposal wells.”

{¶140} Reliable additionally asserted that the complaint

failed to “explain how wastewater could migrate thirteen miles

or more across county lines to affect [appellants’] wells.”

Reliable claimed that appellants did not allege “facts

sufficient to plausibly support the claim that wastewater from

Reliable’s well entered any of its production wells.” Reliable

thus argued that appellants’ complaint does not allege

sufficient facts to indicate that appellants’ “injuries were

caused by Reliable’s actions (negligence, negligence per se, and

nuisance)” or “that Reliable intruded on its interests

(trespass).” Reliable suggested that appellants have taken a

“shotgun approach to litigation” by “target[ing] all area

disposal well operators no matter how minor their role in the

industry.”

{¶141} Reliable further contended that appellants’

“negligence per se claim is preempted by statute.” Reliable

claimed that the statutory provisions do not create a private

right of action. WASHINGTON, 23CA5

94 {¶142} Reliable also argued that (1) Ohio law does not

recognize conversion claims for real property such as

appellants’ mineral estate, (2) appellants’ res ipsa loquitur

allegation is not an independent cause of action, (3) “damages”

are not a cause of action, and (4) a business entity cannot sue

{¶143} Reliable attached to its motion to dismiss a copy of

the ODNR investigative report. Reliable argued that because

appellants’ complaint cited this report, appellants essentially

incorporated the entire report into their complaint. Reliable

thus asserted that the trial court could consider the report

when ruling on its motion to dismiss.

Tallgrass

{¶144} Tallgrass asserted that appellants “have not made a

plausible allegation that Tallgrass was the proximate cause of

any wastewater damage to [appellants’] oil and gas wells.”

Tallgrass faults appellants for failing “to distinguish between

[appellees] or [appellees’] conduct.” And like Redbird,

Tallgrass argued that appellants “simply allege that someone,

somehow caused wastewater to damage wells.” WASHINGTON, 23CA5

95 {¶145} Tallgrass cited a 1991 Ohio Supreme Court case

involving one of the exceptions to Ohio’s notice-pleading rules—

Byrd v. Faber, 57 Ohio St. 3d 56, 60 (1991)—to support its

assertion that appellants “‘must plead the operative grounds

relating to a claim for relief.’ Id.” Tallgrass did not point

out, however, that the Ohio Supreme Court has not applied this

“operative grounds” rule to all civil pleadings.

{¶146} Moreover, Tallgrass cited a concurring justice’s

opinion to support the proposition that “Ohio courts have made

clear that mere speculation, unsupported by operative facts, is

not enough to state a claim” under Ohio’s notice-pleading

standard. Maternal Grandmother v. Hamilton Cnty. Dept. of Job &

Family Servs., 2021-0hio-4096, ¶ 18 (Dewine, J., concurring).

Tallgrass did not point out, however, that the majority opinion

in Maternal Grandmother reaffirmed Ohio’s liberal, notice-

pleading rule and did not state that a complaint must allege

“operative facts” to satisfy Ohio’s notice-pleading standard.

{¶147} Tallgrass likewise cited several Ohio appellate court

cases—none from this district—endorsing what arguably might be a

heightened pleading standard. WASHINGTON, 23CA5

96 {¶148} Tallgrass additionally characterized appellants’

complaint as a “shotgun” pleading and cited federal district

court decisions that suggest that “pleadings that attempt to

hold different defendants accountable for each other’s acts

without ever alleging specifically what any one of them did” are

invalid.

{¶149} Tallgrass also asserted that appellants’ negligence

claims contain “nothing but speculation, conjecture, and

inference stacking.” Tallgrass argued that appellants “not only

fail to put [appellees], including Tallgrass, on proper notice

for what conduct allegedly harmed what property, but also engage

in rank speculation over whether there is any wrongful conduct

on the part of Tallgrass and the other [appellees].”

{¶150} Tallgrass further claimed that appellants’ complaint

fails to allege facts to establish that Tallgrass’s conduct was

a proximate cause of appellants’ alleged damages. Tallgrass

contended that if appellants had focused on each defendant’s

activities individually rather than all of the defendants’

activities collectively, appellants “would have noticed that

many miles, other injection wells, and unaffected oil and gas

wells—including those owned by [appellants]—fall between WASHINGTON, 23CA5

97 Tallgrass’s injection wells and [appellants’] allegedly injured

wells.” Tallgrass argued that appellants thus failed to

plausibly allege that Tallgrass was “the proximate cause of any

wastewater damage to [appellants’] oil and gas wells.” Tallgrass

contended that the complaint does not allege a reasonable

connection between their conduct and appellants’ damages.

Tallgrass asserted that appellants’ allegation that Tallgrass

“committed ‘one or more’ of thirty-three types of conduct, at

some unspecified time, cannot establish causation between

Tallgrass’s actions and [appellants’] alleged property damage.”

Tallgrass stated that appellants failed “to meet their burden

for showing Tallgrass proximately caused the harm described in

the Complaint.”

{¶151} In addition, Tallgrass argued that appellants’

nuisance claim fails to state a claim upon which relief can be

granted because appellants have not alleged “physical

discomfort.” And like the other defendants, Tallgrass asserted

that (1) res ipsa loquitur is not a cause of action, (2)

appellants’ conversion claim fails to allege that Tallgrass WASHINGTON, 23CA5

98 converted personal property, and (3) a business entity, like

Bethel Oil, cannot recover emotional damages.11

{¶152} Tallgrass also referred to the ODNR report and

asserted that the trial court could consider it because

appellants’ complaint cited it.

Appellants’ Responses

{¶153} In response to Diversified/Deeprock’s motion to

dismiss, appellants argued that their complaint “carefully

alleges that each of these [appellees] similarly inject large

volumes of toxic wastewater into subsurface formations that are

understood, and have been demonstrated, to allow for wastewater

exfiltration, migration, and destructive contamination of

shallower subsurface zones, including the Berea sandstone

formation and the areas within it where [appellants] lawfully

produce, and/or have the rights to produce, and market their

mineral interests.” Appellants stated that the complaint

“alleges that the nature of [appellees’] injection operations

11 JDDC initially filed an answer to appellants’ complaint. After the trial court granted the other appellees’ motions to dismiss, JDDC filed a motion to dismiss, which we summarize at a later point in this appendix. WASHINGTON, 23CA5

99 has contaminated these shallower zones and damaged the

commercial value of [appellants’] property interests.”

{¶154} Appellants asserted that the complaint mentions the

ODNR report to establish “documented occurrence of this

phenomenon in the area where, and under the conditions in which,

[appellees] inject provides foundational notice that these

allegations are not being made upon bare speculation or mere

conjecture.” Appellants claimed that “supporting evidence of

[appellees’] wrongful contamination, as alleged, can and will be

advanced at trial.”

{¶155} In response to Redbird’s motion to dismiss, appellants

asserted that despite Redbird’s claim that appellants’ complaint

is too opaque, Redbird had no trouble “describ[ing] exactly what

it is [Redbird is] accused of in [its] Motion” to dismiss.

Appellants contended that their “claims are straightforward” and

that their complaint “carefully alleges that each of these

[appellees] similarly inject large volumes of toxic wastewater

into subsurface formations that are understood, and have been

demonstrated, to allow for wastewater exfiltration, migration,

and destructive contamination of shallower subsurface zones,

including the Berea sandstone formation and the areas within it WASHINGTON, 23CA5

100 where [appellants] lawfully produce, and/or have the rights to

produce, and market their mineral interests.” The complaint

further alleges that “the nature of [appellees’] injection

operations has contaminated theses shallower zones and damaged

the commercial value of [appellants’] property interests.”

{¶156} In response to Reliable’s motion, appellants argued

that their complaint satisfies Ohio’s notice-pleading standard.

Appellants did not agree with Reliable that the complaint must

“detail the geology of the area around Reliable’s wells to try

to show that it shares similar features to Redbird #4, or

discuss specific practices or construction defects at its well

that allows wastewater to escape confinement, or explain how

wastewater could migrate nine miles or more across county

lines.” Appellants instead asserted that these “factual issues

[are] appropriately addressed through discovery, not [Civ.R.]

12(B)(6).”

{¶157} Appellants additionally contended that the court

should not rely upon evidence outside of the complaint.

Appellants stated that their “allegations stand on their own”

and do not require incorporating the ODNR report. Appellants WASHINGTON, 23CA5

101 also claimed that Reliable misrepresented some of the language

used in the report.

{¶158} Appellants argued that their conversion claim involves

“personal property in the form of the equipment they utilize to

extract gas and oil from their wells and the revenue generated

from such efforts.”

{¶159} Appellants disagreed that res ipsa loquitur and

damages cannot be the subject of a separate section of the

complaint. Appellants further asserted that they could cure any

deficiencies by filing an amended complaint. Appellants also

pointed out that Reliable did not have any trouble summarizing

the nature of appellants’ claims against it and presenting a

“factual rebuttal.”

{¶160} In response to Tallgrass’s motion to dismiss,

appellants asserted that the complaint “plausibly alleges that

Tallgrass has contaminated [appellants’] wells and damaged their

property interests by injecting wastewater within sufficient

proximity to damage it and at depths, into geologic substrata,

and under circumstances that have been causally linked to such

contamination, and [appellants] are not required to detail the WASHINGTON, 23CA5

102 finer points of Tallgrass’ operations that it already knows to

plausibly plead their case.”

Appellees’ Replies

{¶161} Diversified/Deeprock argued that appellants did not

refute any of the following: (1) “[t]he alleged findings of the

ODNR report referenced in the Complaint do not mention or even

allude to [Diversified/Deeprock’s] wells”; (2) “[t]he sole

allegation against [Diversified/Deeprock] connecting them to

[appellants’] alleged injury is that they have injection wells

somewhere in Washington and Athens counties”; (3) “[t]he

Complaint against [Diversified/Deeprock] is based solely on

conjecture from an ODNR report that has nothing to do with

[Diversified/Deeprock].”

{¶162} Diversified/Deeprock contended that appellants’

complaint contains “bare assertions” that “are nothing more than

legal conclusions couched as factual statements.”

Diversified/Deeprock argued that “the findings of a single ODNR

report that does not even reference [Diversified/Deeprock’s]

wells” are not operative facts to support the allegation that

“every single injection well across two counties” has injured

appellants. Diversified/Deeprock claimed that appellants’ “wild WASHINGTON, 23CA5

103 and speculative extrapolation of the ODNR report to conclude

that injection wells across two counties have purportedly

injured them is the exact type of conjecture that is precluded

by even Ohio’s liberal pleading standards.”

{¶163} Redbird reiterated its argument that appellants have

not alleged sufficient facts to establish standing. Redbird

claimed that appellants did not allege which appellant owns the

mineral interest, so they have not alleged a concrete and

particularized injury. Redbird further asserted that

appellants’ complaint does not allege what property Redbird

purportedly damaged, how the property was damaged, and when the

property was damaged. Reliable replied that it “can do little

more than guess what [appellants] think Reliable did wrong or

carelessly.”

{¶164} Tallgrass argued that the court can consider the ODNR

report and the geographic location of the wells as shown on the

ODNR website. Tallgrass asserted that appellants’ allegation,

“Upon information and belief, . . . it is reasonably certain

that each and all of the herein-named Defendants have similarly

contaminated and polluted the Berea Sandstone and/or other gas

and oil reservoirs in Washington and/or Athens County and WASHINGTON, 23CA5

104 damaged [appellants’] Property and their Property right,” “is

nothing but a conclusory allegation and is no bar to dismissal

of a complaint.” Tallgrass observed that appellants claimed

that “supporting evidence of Tallgrass’ wrongful contamination,

as alleged, can and will be advanced at trial.” Tallgrass

stated that if appellants “have such evidence, it must at least

be referenced or explained in the Complaint.”

THE TRIAL COURT’S DECISIONS

{¶165} On January 3, 2023, the trial court granted Redbird’s

motion to dismiss. The court noted that appellants’ complaint

alleged that Redbird’s “actions or inactions” have contaminated

appellants’ property and have harmed appellants’ “efforts for

‘further development of gas and oil’ in the future.” The court

found, however, that appellants’ complaint failed “to identify

who owns the minerals that have been damaged in order to

establish who has standing to sue.”

{¶166} The court observed that appellants’ complaint arose

out of an ODNR investigation that involved one of appellants’

wells, “the B.P. Pinkerton #1 well.” The court stated that the

investigation found that contaminated water from Redbird’s #4 WASHINGTON, 23CA5

105 well was responsible for the damage to appellants’ B.P.

Pinkerton #1 well.

{¶167} The court determined that appellants’ complaint did

not give Redbird “notice as to which other wells they allegedly

damaged, when they damaged them[,] or how they damaged them.”

The court further determined that appellants did not “establish

proximate cause between any additional damages to any other

wells” and Redbird.

{¶168} With respect to appellants’ claim involving res ipsa

loquitur, the court found that this claim is not a separate

cause of action, but rather, it is an evidence rule that permits

an inference of negligence.

{¶169} As to appellants’ conversion claim, the court recited

case law that stated that conversion involves personal property

and that an oil and gas lease creates an interest in real

property.

{¶170} Regarding appellants’ claim for emotional damages, the

court noted that this claim related “to both Bethel Oil & Gas

LLC and the Lane Plaintiffs.” The court quoted case law

indicating that corporations cannot suffer emotional distress.

{¶171} The court then granted Redbird’s motion to dismiss. WASHINGTON, 23CA5

106 Tallgrass

{¶172} On January 4, 2023, the court granted Tallgrass’s

motion to dismiss. The court found that appellants’ complaint

does not allege “specific facts that tie [Tallgrass] to either

the Redbird #4 well or to the damages” that appellants claim to

have sustained. The court determined that the complaint “lacks

proximate cause connecting” Tallgrass to appellants’ injuries.

The court recited the elements necessary to establish negligence

and stated that the proximate-cause element requires a plaintiff

to “allege ‘some reasonable connection between the act or

suffered.’” Tallgrass decision at 1-2, quoting Queen City

Terminals, 73 Ohio St.3d at 618.

{¶173} The court further stated that to properly state a

nuisance claim, appellants must establish that the nuisance

caused physical discomfort. The court stated that “‘the law

does not declare a thing a nuisance because * * * the property

of another is rendered less valuable.’” Id. at 2, quoting

Schoenberger v. Davis, 8th Dist. Cuyahoga No. 45611, 1983 WL

5501, *6 (June 23, 1983). The court did not provide any

additional analysis. WASHINGTON, 23CA5

107 {¶174} Next, the court stated that appellants’ res ipsa

loquitur is not a separate cause of action.

{¶175} With respect to appellants’ conversion claim, the

court stated that real property ordinarily is not subject to

conversion. Instead, the court stated that a conversion claim

requires a taking of identifiable personal property. The court

found that appellants’ conversion claim alleges that Tallgrass’s

conduct has “damaged the recovery of minerals from the real

property involved herein” and that their complaint does not

contain any allegations that Tallgrass has converted appellants’

personal property.

{¶176} As to appellants’ emotional-damages claim, the court

found that business entities cannot recover emotional damages.

The court thus granted Tallgrass’s motion to dismiss appellants’

Diversified/Deeprock

{¶177} On January 9, 2023, the court granted

Diversified/Deeprock’s motion to dismiss. The court stated that

appellants did not give Diversified/Deeprock notice “as to what

property they have damaged, when the property was damaged, who

actually damaged what property nor whether the property damaged WASHINGTON, 23CA5

108 was held in fee simple or were leased mineral rights.” The

court further found that appellants did not “provide[]

sufficient proximate cause connecting” Diversified/Deeprock to

their alleged injuries.

{¶178} The court stated that res ipsa loquitur is not a

separate cause of action, appellants’ conversion claim does not

involve personal property, and appellants cannot assert a claim

for damages for emotional distress to a business entity. The

court thus granted Diversified/Deeprock’s motion to dismiss.

{¶179} On January 9, 2023, the trial court granted Reliable’s

motion to dismiss. The court found that “Reliable’s sole well

is located more than thirteen miles away from any of the Bethel

oil wells listed in the Complaint.” The court determined that

appellants’ complaint “does not contain any specific factual

allegations that specifically relate to” Reliable’s wells and

that appellants “have failed to establish proximate cause

connecting” Reliable to appellants’ alleged injuries.

{¶180} The court additionally concluded that real property is

not subject to a conversion claim, res ipsa loquitur is not a

separate cause of action, and business entities cannot recover WASHINGTON, 23CA5

109 damages for emotional distress. The court thus granted

Reliable’s motion to dismiss.

JDDC’s Motion to Dismiss

{¶181} After the trial court granted the foregoing motions to

dismiss, JDDC filed a motion to dismiss. JDDC raised similar

arguments to the other defendants.

{¶182} On March 1, 2023, the court granted JDDC’s motion to

dismiss. The court stated that appellants did not “identify who

owns the mineral rights that have been damaged in order to

establish who has standing to sue” and the complaint did not

indicate “what claim for damages Plaintiff Sandra K. Lane may

have.” The court further determined that appellants’ complaint

does not give JDDC “notice of what wells they have damaged, when

they were damaged or how [JDDC] are connected to the damaged

wells.” The court stated that the complaint does not contain

any “factual allegations with regard to” JDDC, and the complaint

fails “to establish proximate cause.”

{¶183} The court further found that appellants’ complaint

fails to allege that they have suffered physical discomfort to

support their nuisance claim, res ipsa loquitur is not a

separate cause of action, real property is not subject to a WASHINGTON, 23CA5

110 conversion claim, and business entities cannot recover damages

for emotional distress. The court granted thus granted JDDC’s

motion to dismiss.

APPELLATE ARGUMENTS

Appellants

{¶184} Appellants argue that their complaint adequately

notifies appellees of the claims raised against them and that it

does not fail to state a claim upon which relief can be granted.

Appellants assert that the complaint and the proposed amended

complaint allege the following: (1) “each defendant group owns

and operates certain, specifically-identified injection wells to

inject waste fluids into the ground”; (2) appellees’ “injection

operations have damaged development of the mineral interest by

flooding the gas and oil reservoirs in areas where Bethel has

exclusive mineral rights”; (3) appellees “have collectively

injected a cumulative volume of waste fluids under circumstances

that allows for miles of horizontal and lateral movement of

these fluids”; (4) appellees “inject millions of barrels of

wastewater annually into the exact geographic area where these

waste fluids are surfacing and where [appellees] have exclusive

ownership of certain of the mineral acreage”; (5) appellees’ WASHINGTON, 23CA5

111 “injection wells maintain continuous injection intervals in this

precise geographic area that promote upwards surface migration

of waste fluids”; (6) appellees “inject in ways that violate

regulations and promote migration”; (7) “the wrongful conduct of

the other defendants combined to cause the harm to certain,

specifically enumerated mineral acreage;” and (8) appellees’

“operations have damaged and continue to damage [appellants’]

business revenue and economic interests in the development of

their mineral estate and jeopardize the leasehold itself as a

consequence of regional, waste-fluid flooding of the

subsurface.”

{¶185} Appellants argue that the amended complaint further

outlines “where the defendants inject, the years they have been

injecting, the damaging manner in which they inject, the volumes

they have injected to date, the specific depths and subsurface

formations they have flooded, how their injection patterns have

increased over time, and their collective injection of nearly

three billion gallons of waste fluid into porous substrata in

the last decade alone.” Appellants assert that “Ohio law makes

the alleged damages actionable whether tortuously [sic] done by

one or by many.” WASHINGTON, 23CA5

112 {¶186} Appellants contend that the trial court incorrectly

dismissed the complaint based upon its finding that appellants

had not established proximate cause between each defendant and

the damaged Bethel wells. Appellants claim that the court

imposed a heightened pleading burden on appellants that Ohio law

does not support. Appellants note that the court found that

appellants’ complaint did not give appellees notice “as to which

wells [appellees] allegedly damaged, when they damaged them or

how they damaged them.” Appellants claim that the trial court

“misapprehend[ed] the actionable character of the damage being

to the mineral estate as a whole.” They assert that the court’s

decision contravenes the “express allegation that the entirety

of the enumerated mineral acreage can no longer be developed,

commercialized, or liquidated as a consequent of [appellees’]

collective, regional flooding of the subsurface.” Appellants

contend that the pleading standard does not require them “to

connect the dots to each contaminated well.” Appellants contend

that “[t]he Bethel wells are a part of the damaged property, but

primarily as a conduit for commercial production of the mineral

estate.” Appellants allege that “[r]equiring [appellants] to

connect all the dots between each injection well and each WASHINGTON, 23CA5

113 flooded gas well to bring a case for combined harm to

development of the mineral estate imposed an impermissible,

irrelevant, impossible-to-meet standard on [appellants’] case.”

{¶187} Appellants argue that appellees’ arguments that

appellants must connect each injection well to specific damage

to one of the Bethel wells is “exceedingly factual in nature,

requiring discovery and Rule 56 analysis even if [appellants’]

case was confined to the Bethel wells.” Appellants claim that

“the trial court essentially held [appellants] to an evidentiary

standard at the pleadings stage by requiring them to ‘establish

proximate cause’ between each specific well or acre.”

{¶188} Appellants assert that the trial court’s remaining

findings regarding standing, nuisance, res ipsa loquitur,

conversion, and emotional damages are not sufficient to dismiss

appellants’ complaint. Appellants contend that to the extent

that any pleading deficiencies existed, the trial court should

have granted their motion to amend the complaint.

{¶189} Regarding standing, appellants argue that the

complaint identifies appellants as Bethel Oil, a small business,

Robert Lane, the owner of Bethel Oil, and Sandra Lane, who

jointly own property. WASHINGTON, 23CA5

114 {¶190} As to their nuisance claim, appellants assert that the

trial court did not correctly interpret the law and based its

decision upon “misrepresentative snippets of decisions.”

Appellants contend that contrary to the trial court’s findings,

they are not limited to damages for “physical discomfort.”

Appellants argue that damages for nuisance also may include the

loss of use and enjoyment of their property.

{¶191} Regarding their “res ipsa loquitur” claim, appellants

contend that even if it is not an independent cause of action,

they nonetheless could assert the theory in their complaint.

{¶192} As to conversion, appellants state that the trial

court “ignore[d] decisions permitting mineral conversion claims

and ignore[d] the conversion of [appellants’] well

infrastructure (equipment, tools, casing, etc.) that defendants

have effectively converted into repositories for their injected

waste-fluids.”

{¶193} Appellants additionally argue that the trial court

abused its discretion by denying their motion to file an amended

{¶194} Redbird argues that appellants’ complaint does not WASHINGTON, 23CA5

115 “meaningfully identify[] what property was damaged.” Redbird

asserts that the allegation that appellants own “approximately

1,471 acres in Washington County, Ohio and 2,317 acres in Athens

County, Ohio,” along with “equipment, business infrastructure,

and manpower to commercially develop gas and oil” is vague and

“does not specifically enumerate any mineral acreage.”

{¶195} Redbird further contends that the complaint does not

“link any specific action of any of the [a]ppellees to any

particularized damage allegedly caused to the unidentified

‘mineral estate.’”

{¶196} Redbird stated that the complaint’s remaining

allegations likewise are “vague and general allegations that

amount to nothing more than unsupported conjecture.” Redbird

claims that appellants “seek[] to extrapolate a limited and

temporary incident involving one injection well into an ongoing,

chronic and widespread occurrence across two counties without

providing any level of detail or support.” Redbird faults

appellants for failing to specify what property the Redbird

defendants allegedly damaged or “how and when the property was

{¶197} Redbird additionally argues that (1) appellants’ WASHINGTON, 23CA5

116 complaint does not show that they have standing, (2) res ipsa

loquitur is not a separate cause of action, and (3) appellants’

cannot maintain a conversion claim for their mineral estate,

which is real property.

Deeprock

{¶198} Deeprock argues that appellants’ complaint contains

only two specific allegations against it and that neither

sufficiently notifies Deeprock of appellants’ claims. The two

specific allegations state (1) how each entity is organized and

(2) Deeprock owned, operated and/or managed one of more

injection wells in Washington and/or Athens County. Deeprock

asserts that appellants’ claims are based solely on the

allegation that Deeprock operates injection wells.

{¶199} Deeprock further contends that appellants’ complaint

makes “a leap in logic” from the ODNR report to conclude that

appellees are responsible for appellants’ alleged damage.

Deeprock claims that appellants “are essentially speculating,

without any well-pled facts specific as to any Defendant in

support, that Deeprocks’ [sic] injection wells somehow caused

damage to them.” Deeprock states that appellants’ allegations

“are merely legal conclusions couched as factual statements.” WASHINGTON, 23CA5

117 {¶200} Deeprock also complains that appellants’ complaint

lacks “specific allegations,” which leaves it unable to

“properly evaluate the case” or to “possibly know what defenses

to assert without more notice of when, where, and how they

specifically purportedly harmed [appellants].” Deeprock

asserts, for example, that the complaint does not “identify the

specific property rights” that Deeprock allegedly has damaged.

Deeprock contends that it has “no idea what property they

purportedly invaded—was it property owned in fee simple by

[appellants], leased mineral rights, equipment, or all of the

above?”

{¶201} Deeprock also asserts that (1) res ipsa loquitur is

not a cause of action, (2) real property is not subject to

conversion, (3) appellants have not alleged that the Deeprock

appellees took physical possession of any of their “equipment,

tools, [or] casing,” and (4) business entities cannot suffer

emotional damages.

{¶202} Diversified first asserts that the proper standard of

review is the abuse-of-discretion standard of review applicable

to Civ.R. 15(A) motions to amend a pleading. Diversified WASHINGTON, 23CA5

118 alleges that this standard of review governs because appellants

have limited the requested relief to a judgment that reverses

the trial court’s decision that denied their motion to amend the

{¶203} Diversified further contends that appellants’

complaint fails to satisfy the notice-pleading standard. They

recognize that appellants’ complaint identifies each entity,

along with its organizational structure, and asserts that “upon

information and belief” Diversified owns, operates “and/or”

manages one or more injection wells in Washington or Athens

County. Diversified asserts, however, that the claims for

relief contained in the complaint do not specifically identify

which entity caused appellants’ damages. Diversified faults

appellants for lumping all of the defendants together when

stating each claim for relief. Diversified asserts that the

complaint improperly treats appellees as “in effect identical

and indistinguishable tortfeasors” and fails to separate the

claims according to each appellee’s specific operations.

{¶204} Diversified also argues that the complaint makes “a

leap of logic” by using the ODNR report to cast all of the well-

injection operators as similar tortfeasors. Diversified WASHINGTON, 23CA5

119 contends that the complaint indicates that appellants do not

have any “information to substantiate that any of

[Diversified’s] activities are contaminating [appellants’]

wells; if they did, presumably, [a]ppellants would have asserted

it.” Diversified further asserts that the complaint does not

contain any “allegations that the specific wells operated by

[a]ppellees impacted [a]ppellants’ wells in any manner.”

Diversified faults appellants for failing o allege “the basic

‘who,’ ‘what,’ ‘when,’ and ‘where’ so [appellees] could know at

least the bare minimum about the claims against them.”

{¶205} Diversified also argues that the trial court did not

abuse its discretion by denying appellants’ motion to amend

their complaint. Diversified contends that the amendment does

not cure the deficiencies of the initial complaint. As an

example, Diversified states that the amended complaint does not

contain “a specific description of the manner in which the

[a]ppellees proximately caused [a]ppellants’ alleged injuries.”

Diversified asserts that “[s]imply operating an injection well,

without more, is not sufficient grounds to proceed under Ohio

law.” Diversified further alleges that the complaint fails to WASHINGTON, 23CA5

120 set forth any facts that establish “a direct correlation between

[appellants’] asserted injuries” and Diversified’s conduct.

{¶206} Diversified additionally contends that because each

appellee’s operations are different, appellants cannot “paint

all the [a]ppellees with such a broad brush by grouping them

together in effect as one amorphous tortfeasor.” Diversified

asserts that Ohio law requires appellants “to allege at least

some plausible facts as to how each of the defendants . . . have

proximately caused their injuries.” Diversified charges that

appellants have “failed to make a prima facie showing that their

claims against [a]ppellees are viable.”

{¶207} Regarding appellants’ conversion claim, Diversified

argues that appellants’ complaint fails to allege conversion of

any personal property. Diversified further asserts that res

ipsa loquitur is not an independent cause of action.

{¶208} Tallgrass asserts that the trial court correctly

dismissed appellants’ complaint. Tallgrass contends that the

complaint does not (1) satisfy Ohio’s pleading standards, (2)

allege proximate cause, or (3) contain any “valid claims under

Ohio law.” WASHINGTON, 23CA5

121 {¶209} As to the first argument, Tallgrass alleges that

Ohio’s notice-pleading standard (1) “does not eliminate the need

for a properly researched and factually-supported causes of

action,” (2) requires the complaint to allege “operative facts,”

and (3) requires factual allegations to support legal claims.

Tallgrass claims that appellants’ complaint “fails to identify

any specific conduct by Tallgrass that harmed Bethel.”

Tallgrass argues that appellants’ complaint contains only two

specific allegations regarding Tallgrass: (1) Tallgrass’s legal

structure; and (2) Tallgrass owns, operates, “and/or” manages

“one or more” injection wells located in Washington “and/or”

Athens County. Tallgrass contends that these two “nebulous

allegations do not provide Tallgrass notice of the operative

facts underlying the claims against it, and thus fail to satisfy

Ohio’s pleading standard.” Tallgrass further asserts that the

rest of appellants’ complaint simply speculates that the ODNR’s

finding that the Redbird #4 well damaged one of appellants’

wells means that all of the other injection-well operators in

the area “must be liable for harm to that well and to three

other Bethel wells in its immediate vicinity.” WASHINGTON, 23CA5

122 {¶210} Tallgrass states that the complaint fails to contain

any “factual allegations distinguishing between the various

injection-well operators [appellants] sued” or to place “each

[a]ppellee on notice of what, exactly, [each] did to harm”

appellants. Tallgrass contends that the complaint does not

provide any “information on how any [a]ppellee, aside from

Redbird, took any action harming Bethel.” Tallgrass asserts

that appellants’ complaint is based upon “a host of assumptions

and beliefs that are directly inconsistent with the ODNR

report.” Tallgrass argues that the ODNR Report “only addresses

a single operator, Redbird, and is at direct odds with

[appellants’] speculation that others such as Tallgrass could

have caused [appellants’] injury.”

{¶211} Tallgrass further alleges that appellants’ complaint

is a “shotgun pleading” and that Ohio law does not allow these

types of pleadings. Tallgrass recognizes that the Ohio Supreme

Court never has addressed shotgun pleadings but claims that in

the absence of guidance from the Ohio Supreme Court, Ohio

appellate courts “rely on the federal standard.” Tallgrass

cites several federal district court decisions denigrating

“shotgun pleadings” or pleadings that do not differentiate among WASHINGTON, 23CA5

123 defendants. Tallgrass contends that the complaint does not

“explain[] what each operator did. Or how what that operator

did caused the injury to Bethel’s wells.”

{¶212} Tallgrass further argues that the complaint does not

allege how Tallgrass proximately caused appellants’ injuries.

Tallgrass asserts that the complaint fails to allege “‘some

reasonable connection between the act or omission of the

defendant and the damage the plaintiff has suffered.’”

Tallgrass Brief at 10, quoting Queen City, 73 Ohio St.3d at 618.

Tallgrass also contends that “the location of the allegedly-

damages Bethel wells directly contradicts the speculation Bethel

advanced in its Complaint.” To support this assertion,

Tallgrass refers to a map that shows the location of appellants’

wells in relation to the Redbird #4 well. Tallgrass claims that

appellants’ purportedly damaged wells are located in the same

cluster and “on the same east-northeast vector ODNR identified,

from its water samples, as the likely path for migration of

wastewater from Redbird #4.” Tallgrass contends that

appellants’ theory of liability rests upon “guilt-by-geographic-

association.” WASHINGTON, 23CA5

124 {¶213} Regarding appellants’ nuisance claim, Tallgrass

asserts that “property damage,” as appellants have alleged, does

not constitute a nuisance. Tallgrass contends that nuisance

requires a property owner to “experience some sort of physical

discomfort” and does not allow a property owner to recover

damages related to the loss of use and enjoyment of the

property. Tallgrass additionally alleges that appellants’

complaint fails to explain how each appellee “intentionally,

recklessly, or negligently invaded [appellants’] interest in the

{¶214} As to appellants’ res ipsa loquitur claim, Tallgrass

asserts that the trial court properly dismissed this claim

because it is not a valid cause of action.

{¶215} Tallgrass further argues that the trial court properly

dismissed appellants’ conversion claim because the complaint

fails (1) to allege that Tallgrass converted personal property,

(2) to identify any wrongful act that Tallgrass committed, and

(3) to indicate that Tallgrass took possession of any personal

{¶216} Tallgrass additionally contends that the trial court

correctly dismissed appellants’ claim for emotional damages WASHINGTON, 23CA5

125 because a business entity like Bethel Oil cannot recover

{¶217} With regard to appellants’ motion to amend the

complaint, Tallgrass asserts that the trial court did not abuse

its discretion by overruling appellants’ motion. Tallgrass

claims that the amendment does not correct the deficiencies

contained in the initial complaint.

JDDC

{¶218} JDDC asserts that appellants failed to “credibly

allege that [JDDC’s] large-volume, high pressure waste fluid

injection operations . . . collectively caused flooding damage

to the development of [appellants’] mineral estate.” JDDC

points out that appellants allege in their appellate brief that

“it is practically undisputed that Redbird flooded a portion of

the Bethel mineral estate without permission.” JDDC states that

appellants have not, however, made a similar allegation against

JDDC. JDDC thus asserts that appellants “implicitly admit that

they have presented no evidence that any [appellee] other than

Redbird flooded [appellants’] mineral estate without

permission.” JDDC asserts that without this type of evidence,

appellants’ claims “fails as a matter of law.” WASHINGTON, 23CA5

126 {¶219} JDDC further argues that appellants’ complaint does

not establish that they have standing to sue JDDC. More

specifically, JDDC claims that appellants have not alleged that

they suffered an injury that is fairly traceable to JDDC’s

allegedly wrongful conduct. JDDC further asserts that

appellants’ complaint does not identify who owns the mineral

rights that have been damaged and does not specify what claim

Ms. Lane may have.

{¶220} Like some of the other appellees, JDDC contends that

the complaint “contains only 2 allegations specifically

addressing JDDC” and claims that those two allegations do not

state a cognizable claim. JDDC asserts that the complaint does

not contain operative facts and fails to provide notice of which

wells JDDC damaged, when they were damaged, or how JDDC is

connected to the damaged wells.

{¶221} JDDC also faults appellants for grouping all of the

appellees together without specifying what each one allegedly

did. JDDC asserts that appellants did not cite any case “in

which multiple Appellees were found jointly and severally liable

without evidence presented as to each individual Defendant.”

JDDC additionally contends that appellants’ complaint does not WASHINGTON, 23CA5

127 contain any “evidence or reasonable explanation” how the waste

fluids JDDC injected migrated many miles in order to contaminate

appellants’ property. JDDC further claims that it does not own

any wells in Washington or Athens County. JDDC thus argues that

appellants’ complaint fails to show that JDDC’s conduct

proximately caused appellants’ injuries.

{¶222} JDDC contends that the trial court properly dismissed

appellants’ nuisance claim because appellants do not allege that

the alleged nuisance caused them “physical discomfort.” And

like the other appellees, JDDC asserts that (1) res ipsa

loquitur is not an independent cause of action, (2) appellants’

conversion claim fails to allege that appellees took appellants’

personal property, and (3) a business entity like Bethel Oil

cannot suffer emotional damage.

Appellants’ Replies

{¶223} Appellants do not agree with appellees’ characterizing

their complaint as a “shotgun” complaint. Appellants assert

that they “made the same allegations against all defendants

below because they all engage in the same wrongful conduct.”

They contend that their complaint “alleges actionable damage to

their mineral estate from each defendant, and identifies a WASHINGTON, 23CA5

128 number of factors providing a basis for bringing the identified

claims against” each defendant. Some of those factors include

the following: (1) “the documented contamination of

[a]ppellants’ wells by Redbird #4 Class II Injection Well waste

fluid”; (2) “other oil and gas wells in the region have been

similarly contaminated”; and (3) “the nature of demonstrated

impacts to oil and gas wells from contamination, including

significantly increased pressures from the volume of waste fluid

contamination, similarities in the type and scope of operations

each defendant has conducted, the proximity of each defendant’s

injection well to [a]ppellants’ wells in comparison to

documented sources of contamination, and physical

characteristics of each [appellee]’s operations (including depth

of wells and the geological features of the ground drilled).”

{¶224} Appellants argue that appellees’ briefs are replete

with “mischaracterization[s] of Ohio pleading law as requiring a

plaintiff to establish his allegations with proof.” Appellants

contend that their use of the ODNR report is to place appellees

“on notice that the waste-fluid-flooding phenomenon [a]ppellants

describe is actually happening.” (Emphasis in original).

Appellants stated that they have “not simply allege[d] that WASHINGTON, 23CA5

129 [appellees] are responsible by virtue of them injecting waste

fluids.” Instead, their complaint “pointedly put[s] the

[a]ppellees on notice that they are being sued because they

inject waste fluids in an actionable manner that fosters and

promotes damaging exfiltration and migration.”

{¶225} Regarding appellees’ argument that the complaint does

not “identify the mineral estate with any particularity,”

appellants contend that the complaint identifies (1) “the number

of [a]ppellants’ acres that have been damaged for future gas and

oil production and development,” (2) “the counties in which each

set of acreage is situated,” and (3) the name and API number of

the waste-water-flooded wells.” The complaint further alleges

“actionable injection conduct that has combined to cause harm to

the development of the mineral estate.” (Emphasis omitted).

{¶226} Regarding appellees’ arguments that appellants’

complaint does not identify any specific wrongful conduct,

appellants retort that appellees’ arguments are “patent

misstatement[s]” when the complaint is “inundated with

references to the specific conduct at issue being the

actionable, flooding manner of each defendant’s injection WASHINGTON, 23CA5

130 operations.” Moreover, the complaint identifies “at least 32

specific acts and/or omissions.”

{¶227} Regarding appellees’ proximate-cause arguments,

appellants do not disagree that they eventually must present

evidence to establish that appellees’ conduct proximately caused

appellants’ injuries. They vehemently disagree, however, that

they must present this evidence at the pleading stage.

Appellants further assert that appellees attempt to raise

factual and evidentiary issues that would be appropriate if

discovery had occurred and appellees had filed summary-judgment

motions. Appellants contend that these types of arguments are

wholly inappropriate at the motion-to-dismiss stage.