Cameron v. Mark West Liberty Midstream & Resources, L.L.C.

2024 Ohio 6072

• Court: Ohio Court of Appeals
• Decided: December 20, 2024
• Docket: 23 JE 0020
• Status: Published

Opinion

[Cite as Cameron v. Mark West Liberty Midstream & Resources, L.L.C., 2024-Ohio-6072.]

IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT JEFFERSON COUNTY

DAVID E. CAMERON,

Plaintiff-Appellant,

v.

MARK WEST LIBERTY MIDSTREAM & RESOURCES, LLC ET AL.,

Defendants-Appellees.

OPINION AND JUDGMENT ENTRY Case No. 23 JE 0020

Appellees’ Application for Reconsideration and Motion to Stay Enforcement of Remand

BEFORE: Cheryl L. Waite, Carol Ann Robb, Mark A. Hanni, Judges.

JUDGMENT: Denied.

Atty. Michael D. Dortch, Atty. Richard R. Parsons, Atty. Justin M. Dortch, Kravitz, Brown & Dortch, LLC and Atty. Jeffrey Orr Brown, for Plaintiff-Appellant

Atty. Christopher R. Nestor and Atty. David R. Overstreet, Overstreet & Nestor, LLC, for Defendants-Appellees

Dated: December 20, 2024 –2–

PER CURIAM.

{¶1} Appellees Mark West Liberty Midstream & Resources, LLC and Jefferson

Gas Gathering Co, LLC (“Mark West”) have filed an application for reconsideration and a

motion to stay enforcement of the remand ordered in Cameron v. Mark West Liberty

Midstream & Resources, LLC, 2024-Ohio-5279 (7th Dist.). Appellant David Cameron has

filed a response. Because Appellees simply disagree with the logic employed by this

Court in reaching our decision, the application for reconsideration and motion for stay are

denied.

Factual and Procedural History

{¶2} The facts of the underlying matter are complicated and will not be fully

recited herein. However, the appeal concerns a right-of-way pipeline easement

agreement which this Court found to be inherently ambiguous. The appeal also involves

the promise of Mark West to install an electronic fence. They admittedly did not. In our

Opinion, we reversed the trial court’s decision that the agreement was not ambiguous

and that the promise regarding the fence was gratuitous, and remanded the matter for

further proceedings.

{¶3} We note that throughout their application, Mark West raises what are styled

“reasons for reconsideration,” which we convert to assignments of error.

Application For Reconsideration

The test generally applied upon the filing of a motion for

reconsideration in the court of appeals is whether the motion calls to the

Case No. 23 JE 0020 –3–

attention of the court an obvious error in its decision, or raises an issue for

consideration that was either not considered at all or was not fully

considered by the court when it should have been.

Columbus v. Hodge, 37 Ohio App.3d 68 (10th Dist. 1987), paragraph one of the syllabus.

ASSIGNMENT OF ERROR NO. 1

The Court of Appeals Committed Obvious Error By Concluding That The

Parties Expected A Trial On The Threshold Issue Of Ambiguity.

{¶4} Beginning with Mark West’s claim that the parties and the trial court decided

to resolve the issue through means of summary judgment during a pretrial conference for

which no transcripts exist, this assertion is irrelevant, as it merely provides background

and procedural history.

{¶5} The only record evidence of the summary judgment process is Cameron’s

motion “REGARDING HIS CLAIMS FOR DECLARATORY RELIEF, AND ALTERNATIVE

MOTION FOR THE ENTRY OF AN ORDER CONVERTING THIS BRIEF INTO A

MOTION FOR SUMMARY JUDGMENT IN HIS FAVOR.” (3/2/20 Motion.) Mark West

responded to this motion in a document titled “BRIEF IN OPPOSITION TO PLAINTIFF’S

BRIEF REGARDING CLAIMS FOR DECLARATORY RELIEF.” In this brief, Mark West

took the opposite approach it now takes, arguing that “[b]ecause the threshold

determination of the meaning of the Right-of-Way Agreement has yet to be made, and is

the very purpose of this bifurcated proceedings, Plaintiff’s attempt at summary judgment

on the merits is premature.” (3/27/20 Motion in Opposition, p. 9.) It appears that, although

not clear from this record, the matter was addressed by the parties and the trial court at

Case No. 23 JE 0020 –4–

a pretrial hearing. Because the transcripts for this hearing are not part of the record, we

have no way of knowing what actually occurred at this pretrial stage.

{¶6} Regardless, while the parties may have agreed to have the trial court

resolve the matter through summary judgment during this pretrial hearing, the fact

remains that it should have become abundantly clear to the trial court during these

proceedings that genuine issues of material fact existed and summary judgment was not

appropriate or warranted. Mark West clearly disagrees with this determination, even

though it opposed summary judgment during at least the initial trial court proceedings.

Disagreement with our Opinion does not support reconsideration, however.

ASSIGNMENT OF ERROR NO. 2

The Court of Appeals Committed Obvious Error By Determining The

Threshold Issue Of Ambiguity By Leaping Over The Plain Language Of The

Contract And Resorting To Extrinsic Evidence.

{¶7} Here, Mark West merely restates the same arguments found in its merit

brief that were fully addressed and rejected by this Court. Mark West has not pointed to

any obvious error, but simply disagrees with our Opinion. Again, this does not support

reconsideration.

ASSIGNMENT OF ERROR NO. 3

The Court of Apppeals [sic] Committed Obvious Error By Concluding That

The Trial Court Found A Trespass.

Case No. 23 JE 0020 –5–

{¶8} To be clear, Mark West misstates this Court’s Opinion. We did not conclude

the trial court found a trespass. Instead, we noted the trial court lacked clarity as to

whether it found no trespass had taken place or found that minimal trespass had occurred.

Despite the imprecision in the language employed by the trial court, this Court assumed

the court found no trespass had occurred. However, as the matter has been entirely

remanded to the trial court, Mark West’s semantic argument is immaterial, here.

ASSIGNMENT OF ERROR NO. 4

The Court of Appeals Committed Obvious Error By Applying The Wrong

Standard Of Review.

{¶9} Mark West’s contention that this Court deferred to Cameron’s recitation of

the facts is incorrect. It is apparent from our Opinion that we conducted our own review

of the record and developed our factual and procedural recitation based on the record.

We note that, as stated within our Opinion, it is unclear on what basis the trial court rooted

its August 12, 2020 decision, as both declaratory relief and summary judgment are

referenced by the trial court. As we acknowledged, and Mark West concedes in its first

assignment of error here, the decision was not reached following any sort of evidentiary

proceeding, thus, manifest weight of the evidence cannot apply. As we have determined

there were issues of material fact that required a full evidentiary hearing, there was no

appropriate factual determination made by the trial court to which we are required to defer.

Case No. 23 JE 0020 –6–

ASSIGNMENT OF ERROR NO. 5

The Court Of Appeals Committed Obvious Error By Finding Breach Of An

Oral Contract Regarding Fencing Given The Fully Integrated Contract

Between The Parties.

ASSIGNMENT OF ERROR NO. 6

The Court of Appeals Committed Obvious Error By Finding That Plaintiff

Proved Damages For Breach Of An Oral Contract.

{¶10} The trial court did conduct an abbreviated hearing on certain disputed

issues. As to the oral promise raised here, the trial court found the promise to be

gratuitous, thus lacked the element of consideration. We clearly understood the trial court

did not find an enforceable agreement between the parties on this issue, despite the trial

court’s discussion related to partial performance.

{¶11} As noted by the trial court, while Cameron’s testimony regarding damages

was not what the court was accustomed to, Cameron did testify as to his damages

regarding Mark West’s failure to perform, and that testimony was uncontroverted. Mark

West obviously disagrees with our observation of this fact on the record. Again, there is

no obvious error in pointing out testimony in an appellate record. Regardless, as earlier

discussed, the case is remanded in its entirety to the trial court so that any further factual

disputes can be clarified on remand.

Case No. 23 JE 0020 –7–

Conclusion

{¶12} Because it is clear Appellees simply disagree with the logic employed by

this Court in reaching our decision, the application for reconsideration and motion for stay

in this matter are denied.

JUDGE CHERYL L. WAITE

JUDGE CAROL ANN ROBB

JUDGE MARK A. HANNI

Case No. 23 JE 0020