[Cite as O’Bradovich v. Hess Ohio Devs., L.L.C., 2021-Ohio-1996.]
IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT JEFFERSON COUNTY
ELI O’BRADOVICH aka ELY O’BRADOVICH, et al.,
Plaintiffs-Appellants,
v.
HESS OHIO DEVELOPMENTS, LLC, et al.,
Defendants-Appellees.
OPINION AND JUDGMENT ENTRY Case No. 20 JE 0007
Appellants’ Motion to Certify a Conflict
BEFORE: Cheryl L. Waite, Gene Donofrio, David A. D’Apolito, Judges.
JUDGMENT: Denied.
Atty. Gregory W. Watts, Atty. Matthew W. Onest, and Atty. William G. Williams, Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A., 4775 Munson Street NW, P.O. Box 36963 Canton, Ohio 44735-6963, for Plaintiffs-Appellants
Atty. Kevin L. Colosimo, and Atty. Christopher Rogers, Frost Brown Todd, LLC, Union Trust Building, 501 Grant Street, Suite 800, Pittsburgh, Pennsylvania 15219, for –2–
Defendants-Appellees, Ascent Resources — Utica, LLC and Utica Minerals Development, LLC
Atty. Rodger L. Puz, Dickie, McCamey & Chilcote, P.C., Two PPG Place, Suite 400, Pittsburgh, Pennsylvania 15222 and
Atty. Paul J. Schumacher, Dickie, McCamey & Chilcote, P.C., 600 Superior Avenue East, Suite 2330, Cleveland, Ohio 44114, for Appellees, Hess Ohio Developments, LLC and CNX Gas Company LLC
Dated: June 10, 2021
PER CURIAM.
{¶1} On March 22, 2021, we released our Opinion in O’Bradovich v. Hess Ohio
Devs., L.L.C., 7th Dist. Jefferson No. 20 JE 0007, 2021-Ohio-1287. On April 1, 2021,
Appellants Louis O'Bradovich, Rebecca and Paul Eberhart, Natalie Louise Basnett,
Camille and John Keyoski, and Ely (aka Eli) and Sandra O'Bradovich (collectively referred
to as “Appellants”) filed a motion to certify a conflict to the Ohio Supreme Court, pursuant
to App.R. 25(A). Appellants contend that our Opinion conflicts with that of Muffley v. M.B.
Operating Co, Inc., 5th Dist. No. CA-6910, 1986 WL 12348 (Oct. 27, 1986). Because our
Opinion was decided on facts different than Muffley, we deny Appellants' motion to certify
a conflict.
{¶2} Motions to certify a conflict are governed by Article IV, Section 3(B)(4) of
the Ohio Constitution. It provides:
Whenever the judges of a court of appeals find that a judgment upon which
they have agreed is in conflict with a judgment pronounced upon the same
question by any other court of appeals of the state, the judges shall certify
Case No. 20 JE 0007 –3–
the record of the case to the Supreme Court for review and final
determination.
{¶3} Under Ohio law, “there must be an actual conflict between appellate judicial
districts on a rule of law before certification of a case to the Supreme Court for review and
final determination is proper.” Whitelock v. Gilbane Bldg. Co., 66 Ohio St.3d 594, 613
N.E.2d 1032 (1993), paragraph one of the syllabus. We have adopted the following
requirements from the Supreme Court:
[A]t least three conditions must be met before and during the certification of
a case to this court pursuant to Section 3(B)(4), Article IV of the Ohio
Constitution. First, the certifying court must find that its judgment is in
conflict with the judgment of a court of appeals of another district and the
asserted conflict must be “upon the same question.” Second, the alleged
conflict must be on a rule of law–not facts. Third, the journal entry or opinion
of the certifying court must clearly set forth that rule of law which the
certifying court contends is in conflict with the judgment on the same
question by other district courts of appeals. (Emphasis deleted.).
Id. at 596.
{¶4} In O’Bradovich, we were presented with the issue of whether a deed
containing the phrase “other minerals” sufficiently referenced oil, gas, and hydrocarbon
interests. Id. at ¶ 13. We extensively reviewed the development of the caselaw pertaining
to this topic and held that the deed language demonstrated that oil, gas, and hydrocarbon
interests were included within the reservation. Id. at ¶ 33.
Case No. 20 JE 0007 –4–
{¶5} Appellants focus on a single sentence of our Opinion discussing the fact
that “[o]nce drilling in Ohio became fairly commonplace, however, we may expect some
reference to oil and gas when using the general language ‘other minerals.’ ” Id. at ¶ 31.
Appellants contend that this sentence is in conflict with Muffley which held that a specific
reference to oil and gas should have been included as “it was beyond dispute that in that
year [1960] oil and gas drilling has been conducted within Tuscarawas County for
decades.” Id. at *2.
{¶6} In O’Bradovich, we explained that the analysis begins with a presumption
that the phrase “other minerals” includes the oil, gas, and hydrocarbon interests,
consistent with the Ohio Supreme Court’s proclamation in Detlor v. Holland, 57 Ohio St.
492, 49 N.E. 690 (1898). Id. at ¶ 26. The next step is to determine whether the parties
intended to include those interests. In determining the parties’ intent, a reviewing court
may consider several factors, including: the language of the reservation itself, the
language of the corresponding easement, and whether there is evidence of the level of
oil and gas production within the locality during the relevant time period. Based on the
extensive caselaw, it is clear that no one factor is determinative and the presence or
absence of evidence pertaining to any one factor is likewise not determinative.
{¶7} Contrary to Appellants’ argument, none of these cases were decided by the
use of a bright-line rule. Instead, each court applied factors that were relevant to the
analysis based on the available record. There is no question that these cases are
reviewed by looking at the intent of the parties which requires reviewing the relevant
totality of the circumstances, not just a single factor.
Case No. 20 JE 0007 –5–
{¶8} Contrary to Appellants’ arguments, there is a complete absence of a legal
conflict between O’Bradovich and Muffley. The two holdings are entirely fact specific.
The Muffley court was presented with evidence “beyond dispute” that drilling for oil and
gas had been conducted for decades within the locality, Tuscarawas County, at the time
the deed was executed in 1960. Id. at *2. Given that level of activity, the Muffley court
held that the parties would have been expected to make some reference to oil and gas if
those rights were intended to be included as “other minerals” in a deed reservation. Id.
at *2.
{¶9} In O’Bradovich, the record was devoid of any evidence concerning whether
the drilling within the locality, Jefferson County and its immediate vicinity was
commonplace, at the time the deed was executed in 1940. Appellants appear to ask us
to take judicial notice that drilling for oil and gas was prevalent within the vicinity of
Jefferson County in 1940. However, we cannot take judicial notice of this fact, as the
parties have failed to present any evidence in support and caselaw does not provide such
information. While we previously acknowledged that language found in a deed executed
in 1949 “could include oil and gas,” we will not speculate that the same level of drilling
was occurring almost a decade earlier. Corso v. Miser, 7th Dist. Jefferson No. 19 JE
0018, 2020-Ohio-5293. Even so, the use of the word “could” certainly does not rise to
the level of “beyond dispute” as described within Muffley.
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[Cite as O’Bradovich v. Hess Ohio Devs., L.L.C., 2021-Ohio-1996.]
IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT JEFFERSON COUNTY
ELI O’BRADOVICH aka ELY O’BRADOVICH, et al.,
Plaintiffs-Appellants,
v.
HESS OHIO DEVELOPMENTS, LLC, et al.,
Defendants-Appellees.
OPINION AND JUDGMENT ENTRY Case No. 20 JE 0007
Appellants’ Motion to Certify a Conflict
BEFORE: Cheryl L. Waite, Gene Donofrio, David A. D’Apolito, Judges.
JUDGMENT: Denied.
Atty. Gregory W. Watts, Atty. Matthew W. Onest, and Atty. William G. Williams, Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A., 4775 Munson Street NW, P.O. Box 36963 Canton, Ohio 44735-6963, for Plaintiffs-Appellants
Atty. Kevin L. Colosimo, and Atty. Christopher Rogers, Frost Brown Todd, LLC, Union Trust Building, 501 Grant Street, Suite 800, Pittsburgh, Pennsylvania 15219, for –2–
Defendants-Appellees, Ascent Resources — Utica, LLC and Utica Minerals Development, LLC
Atty. Rodger L. Puz, Dickie, McCamey & Chilcote, P.C., Two PPG Place, Suite 400, Pittsburgh, Pennsylvania 15222 and
Atty. Paul J. Schumacher, Dickie, McCamey & Chilcote, P.C., 600 Superior Avenue East, Suite 2330, Cleveland, Ohio 44114, for Appellees, Hess Ohio Developments, LLC and CNX Gas Company LLC
Dated: June 10, 2021
PER CURIAM.
{¶1} On March 22, 2021, we released our Opinion in O’Bradovich v. Hess Ohio
Devs., L.L.C., 7th Dist. Jefferson No. 20 JE 0007, 2021-Ohio-1287. On April 1, 2021,
Appellants Louis O'Bradovich, Rebecca and Paul Eberhart, Natalie Louise Basnett,
Camille and John Keyoski, and Ely (aka Eli) and Sandra O'Bradovich (collectively referred
to as “Appellants”) filed a motion to certify a conflict to the Ohio Supreme Court, pursuant
to App.R. 25(A). Appellants contend that our Opinion conflicts with that of Muffley v. M.B.
Operating Co, Inc., 5th Dist. No. CA-6910, 1986 WL 12348 (Oct. 27, 1986). Because our
Opinion was decided on facts different than Muffley, we deny Appellants' motion to certify
a conflict.
{¶2} Motions to certify a conflict are governed by Article IV, Section 3(B)(4) of
the Ohio Constitution. It provides:
Whenever the judges of a court of appeals find that a judgment upon which
they have agreed is in conflict with a judgment pronounced upon the same
question by any other court of appeals of the state, the judges shall certify
Case No. 20 JE 0007 –3–
the record of the case to the Supreme Court for review and final
determination.
{¶3} Under Ohio law, “there must be an actual conflict between appellate judicial
districts on a rule of law before certification of a case to the Supreme Court for review and
final determination is proper.” Whitelock v. Gilbane Bldg. Co., 66 Ohio St.3d 594, 613
N.E.2d 1032 (1993), paragraph one of the syllabus. We have adopted the following
requirements from the Supreme Court:
[A]t least three conditions must be met before and during the certification of
a case to this court pursuant to Section 3(B)(4), Article IV of the Ohio
Constitution. First, the certifying court must find that its judgment is in
conflict with the judgment of a court of appeals of another district and the
asserted conflict must be “upon the same question.” Second, the alleged
conflict must be on a rule of law–not facts. Third, the journal entry or opinion
of the certifying court must clearly set forth that rule of law which the
certifying court contends is in conflict with the judgment on the same
question by other district courts of appeals. (Emphasis deleted.).
Id. at 596.
{¶4} In O’Bradovich, we were presented with the issue of whether a deed
containing the phrase “other minerals” sufficiently referenced oil, gas, and hydrocarbon
interests. Id. at ¶ 13. We extensively reviewed the development of the caselaw pertaining
to this topic and held that the deed language demonstrated that oil, gas, and hydrocarbon
interests were included within the reservation. Id. at ¶ 33.
Case No. 20 JE 0007 –4–
{¶5} Appellants focus on a single sentence of our Opinion discussing the fact
that “[o]nce drilling in Ohio became fairly commonplace, however, we may expect some
reference to oil and gas when using the general language ‘other minerals.’ ” Id. at ¶ 31.
Appellants contend that this sentence is in conflict with Muffley which held that a specific
reference to oil and gas should have been included as “it was beyond dispute that in that
year [1960] oil and gas drilling has been conducted within Tuscarawas County for
decades.” Id. at *2.
{¶6} In O’Bradovich, we explained that the analysis begins with a presumption
that the phrase “other minerals” includes the oil, gas, and hydrocarbon interests,
consistent with the Ohio Supreme Court’s proclamation in Detlor v. Holland, 57 Ohio St.
492, 49 N.E. 690 (1898). Id. at ¶ 26. The next step is to determine whether the parties
intended to include those interests. In determining the parties’ intent, a reviewing court
may consider several factors, including: the language of the reservation itself, the
language of the corresponding easement, and whether there is evidence of the level of
oil and gas production within the locality during the relevant time period. Based on the
extensive caselaw, it is clear that no one factor is determinative and the presence or
absence of evidence pertaining to any one factor is likewise not determinative.
{¶7} Contrary to Appellants’ argument, none of these cases were decided by the
use of a bright-line rule. Instead, each court applied factors that were relevant to the
analysis based on the available record. There is no question that these cases are
reviewed by looking at the intent of the parties which requires reviewing the relevant
totality of the circumstances, not just a single factor.
Case No. 20 JE 0007 –5–
{¶8} Contrary to Appellants’ arguments, there is a complete absence of a legal
conflict between O’Bradovich and Muffley. The two holdings are entirely fact specific.
The Muffley court was presented with evidence “beyond dispute” that drilling for oil and
gas had been conducted for decades within the locality, Tuscarawas County, at the time
the deed was executed in 1960. Id. at *2. Given that level of activity, the Muffley court
held that the parties would have been expected to make some reference to oil and gas if
those rights were intended to be included as “other minerals” in a deed reservation. Id.
at *2.
{¶9} In O’Bradovich, the record was devoid of any evidence concerning whether
the drilling within the locality, Jefferson County and its immediate vicinity was
commonplace, at the time the deed was executed in 1940. Appellants appear to ask us
to take judicial notice that drilling for oil and gas was prevalent within the vicinity of
Jefferson County in 1940. However, we cannot take judicial notice of this fact, as the
parties have failed to present any evidence in support and caselaw does not provide such
information. While we previously acknowledged that language found in a deed executed
in 1949 “could include oil and gas,” we will not speculate that the same level of drilling
was occurring almost a decade earlier. Corso v. Miser, 7th Dist. Jefferson No. 19 JE
0018, 2020-Ohio-5293. Even so, the use of the word “could” certainly does not rise to
the level of “beyond dispute” as described within Muffley.
{¶10} As evidence pertaining to the prevalence of oil and gas drilling was not
within the record, our Opinion focused on the deed itself, particularly the easement
language. We held that “the deed on which the entirety of the complaint is based does
not exclude oil and gas in its broad reservation language and, in fact, must be read to
Case No. 20 JE 0007 –6–
include these minerals in looking at the relevant language in the easement.” O’Bradovich
at ¶ 31.
{¶11} The language at issue in our Opinion merely acknowledges that there is
some middle ground between Muffley and Detlor. The Detlor Court relied in part on the
fact that oil and gas was developed in small quantities within ten to twenty miles of the
property in contention and there was nothing to show that the parties knew of this limited
production in 1890. On the other hand, Muffley acknowledged there was a point at which
oil and gas production become so commonplace that one would be expected to include
some reference to those interests. The facts supporting that conclusion relied on
evidence beyond dispute that oil and gas had been developed for decades within the
locality.
{¶12} In other words, neither Detlor nor Muffley are in conflict with one another or
with the instant case because even though some drilling for oil and gas was taking place,
it does not mean that this drilling had risen to the level of “commonplace” as in Muffley.
In reading each of these cases as a group, we can see that there has been a progression
in drilling activity and that there is an area or time between the two extremes where oil
and gas drilling may not be unusual but it has not become a full-blown industry within the
area. And while Appellants seek to rely on a footnote in Sheba regarding the Muffley
holding, this footnote is dicta. Thus, it cannot form the basis for finding that a conflict
exists.
{¶13} In summation, Muffley was based on undisputed evidence pertaining to the
commonplace nature of oil and gas drilling within that locality. O’Bradovich was based
on the language contained with the deed, particularly the easement language.
Case No. 20 JE 0007 –7–
Significantly, this record is completely devoid of any evidence concerning the level of oil
and gas drilling in the area during the relevant time. Thus, consistent with the caselaw,
we reviewed the factors that could be supported by evidence available in this record. As
this matter is completely factually distinct from Muffley, no conflict of law exists.
{¶14} Accordingly, Appellants’ motion to certify a conflict to the Ohio Supreme
Court is denied.
JUDGE CHERYL L. WAITE
JUDGE GENE DONOFRIO
JUDGE DAVID A. D’APOLITO
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 20 JE 0007 [Cite as O’Bradovich v. Hess Ohio Devs., L.L.C., 2021-Ohio-1996.]