[Cite as Polen v. Heaston, 2016-Ohio-7508.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
JON C. POLEN JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellant Hon. William B. Hoffman, J. Hon. Craig R. Baldwin, J. -vs- Case No. 2016AP020011 CATHY HEASTON EXEC., ET AL.
Defendants-Appellees OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court of Common Pleas, Case No. 2010CV040531
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 21, 2016
APPEARANCES:
For Appellant - For Appellees - Jon. C. Polen, Executor Cathy Heaston, Daniel Polen, of the Estate of Robert Polen Martha Bethel
J. KEVIN LUNDHOLM JEFFREY T. KENNEY Kyler, Pringle, Lundholm Droder & Miller Co., L.P.A. & Durmann, L.P.A. 125 West Central Parkway 405 Chauncey Avenue, N.W. Cincinnati, Ohio 45202 P.O. Box 668 New Philadelphia, Ohio 44663
For Appellant – For Appellee – Jon C. Polen Dean W. Polen, Jr.
DAVID K. SCHAFFNER JOSHUA E. O’FARRELL Schaffner Law Offices Co., L.P.A. Tzangas, Plakas, Mannos, Ltd. 132 Fair Avenue NW 220 Market Avenue, 8th Floor New Philadelphia, Ohio 44663 Canton, Ohio 44702 Tuscarawas County, Case No. 2016AP020011 2
For Appellees James Polen and Rodney Polen
JAMES L. NICHELSON P.O. Box 97 Martins Ferry, Ohio 43945 Tuscarawas County, Case No. 2016AP020011 3
Hoffman, J.
{¶1} Plaintiff-appellant Jon C. Polen appeals the January 15, 2016 Judgment
Entry entered by the Tuscarawas County Court of Common Pleas, which granted, in part,
his motion to show cause, finding defendant-appellee Dean Polen in contempt for failing
to provide certain information pursuant to the September 19, 2012 Agreed Entry between
the parties, but denied, in part, the remaining branches of his motion. Daniel Polen, Cathy
Heaston, and Martha Bethel are also defendants-appellees.
STATEMENT OF THE FACTS AND CASE
{¶2} On December 18, 1984, Robert C. Polen (“Decedent”) established the
Polen Land Trust (“the Trust”) pursuant to the laws of the state of Florida. The Trust
assets include coal interests and oil and gas interests located in Ohio, and West Virginia.
The parties are the grandchildren of Decedent and are the beneficiaries of the Trust.
{¶3} On April 10, 2010, Appellant filed the instant action against his brothers,
James Polen, Rodney Polen and Robert Polen,1 and his cousins, Appellees Dean Polen,
Daniel Polen, Cathy Heaston, and Martha Bethel, alleging wrongdoing with respect to the
Trust. James Polen and Appellee Dean Polen were co-trustees at the time of the filing of
the lawsuit. Robert Polen died during the pendency of the action. Appellant was named
Executor of Robert Polen’s estate.
{¶4} On September 19, 2012, the parties entered into an Agreed Entry.
Pursuant to Paragraph 4 of the Agreed Entry, the parties agreed:
1James Polen and Rodney Polen are not parties to this appeal. Robert Polen died during the pendency of the underlying action. Tuscarawas County, Case No. 2016AP020011 4
[A]ny and all interests in coal and coal mining rights owned by the
Polen Land Trust, or jointly owned by the Robert C. Polen Trust, the Robert
C. Polen heirs, the Dean W. Polen heirs, or any other person or entity,
consisting of approximately 3,265 acres in Ohio and all acreage in West
Virginia, shall be marketed for immediate sale within 120 days of the signing
of this Agreement. An independent coal expert shall select a coal broker.
The proceeds of said sale shall be divided as stated below. Jon Polen[,]
Dean and James Polen, with the assistance of his/their counsel, shall
communicate with the said independent coal expert and the coal broker and
present all offers to the individuals and entities stated below The
independent coal expert’s recommendations as to price shall be followed.
Sale or sales shall proceed upon agreement of a majority of the persons
and entities stated below. All parties agree that the sale of the coal rights
will be subordinate to and not interfere with the marketing of the gas and oil
interests. Net funds realized from said sale(s) shall be distributed as
follows:
a. 12.5% to Dean W. Polen, Jr.
b. 12.5% to Daniel Polen
c. 12.5% to Martha Bethels [sic]
d. 12.5% to Cathy Heaston
e. 10% to the Estate of Robert Polen
f. 10% to Jon Polen
g. 10% to Rodney Polen Tuscarawas County, Case No. 2016AP020011 5
h. 10% to James Polen
i. 10% to J.P. Morgan Chase, as Trustee of the Robert C. Polen Trust
{¶5} Paragraph 7 of the Agreed Entry provides:
All remaining unleased parcels of gas and oil interests in Ohio owned
by the Polen Land Trust and listed on the “Acreage Not Leased” schedule
prepared by Diversified Engineering showing 447.28 acres that are not
presently under lease shall:
a. Be marketed by Jon Polen, with the assistance of his counsel, for
lease. Said properties shall be leased within 120 days of the signing of this
agreement. In the event that the properties are not leased, this time period
will be extended for an additional 90 days if Jon Polen, through counsel,
shows that he is in negotiations with lessees.
b. After payment of the initial 10% of the proceeds of said leases to
J.P. Morgan Chase, as Trustee of the Robert C. Polen Trust, all bonus and
royalty payments resulting from such remaining gas and oil interests shall
be divided as follows:
i. 20% to Dean W. Polen, Jr., Daniel Polen, Martha Bethels [sic],
Cathy Heaston, James Polen, and Rodney Polen
ii. 30% to the Estate of Robert M. Polen
iii. 50% to Jon Polen Tuscarawas County, Case No. 2016AP020011 6
iv. James Polen and Rodney Polen waive any claims they may have
in the said Estate of Robert M. Polen to any funds realized by said Estate
under this Paragraph 7.
{¶6} Paragraph 8 of the Agreed Entry states:
The parties agree, upon the sale of the coal interests hereunder, the
Polen Land Trust shall be dissolved and any funds remaining shall be
divided by the Trust to the individuals and entities as stated at Paragraph 4,
herein.
{¶7} Paragraph 9 of the Agreed Entry reads:
Said Polen Land Trust shall assign all interests in and royalties from
currently extant mineral leases to the individuals and entities as stated at
Paragraph 4, herein.
{¶8} On December 18, 2014, Appellant, individually and as Executor of the
Estate of his brother, Robert M. Polen, filed a motion to show cause against Appellee
Dean W. Polen, Jr.; Appellee Martha Bethel; Appellee Daniel Polen; Appellee Cathy
Heaston; James Polen; and Rodney Polen. Appellent asserted the following allegations: Tuscarawas County, Case No. 2016AP020011 7
(1) Defendant Dean Polen failed to retain an independent coal expert
and a coal broker to market the coal interest of the Polen Land Trust, as
ordered in paragraph 4 of the Agreement;
(2) Defendant Dean Polen failed to provide the other beneficiaries of
the Polen Land Trust with information relating to the Pleasants County,
West Virginia leases and any property leased to the Cameron Drilling
Company, as ordered in paragraph 6 of the Agreement;
(3) Defendant Dean Polen intentionally and tortiously, interfered with
the efforts of Jon Polen to market the oil and gas interests held by the Polen
Land Trust, as he was directed to do in paragraph 7 of the Agreement;
(4) Defendants, Dean Polen and James Polen, resigned from their
positions as successor co-trustees in order to circumvent the court order set
forth in paragraph 8 of the Agreement, that the Polen Land Trust be
dissolved only upon the sale of all the Polen Land Trust coal interests;
(5) Defendants, Dean Polen and James Polen, signed a lease for
Polen Land Trust oil and gas interests with Chesapeake Exploration, LLC
after their resignations; and
(6) Upon information and belief, Defendants caused the holdings of
the Polen Land Trust to be dispersed in violation of the percentages due
each beneficiary under paragraph 7(b) of the Settlement Agreement.
{¶9} The trial court conducted a hearing on Appellant’s motion on August 7,
2015. At the conclusion of the hearing, the trial court ordered the parties to submit written Tuscarawas County, Case No. 2016AP020011 8
closing arguments. Via Judgment Entry filed January 15, 2016, the trial court granted, in
part, Appellant’s motion to show cause as against Appellee Dean Polen with respect to
the second branch of the motion, finding Appellee Dean Polen in contempt for failing to
provide the other beneficiaries of the Trust information regarding the Pleasants County,
West Virginia leases as well as any property leased to Cameron Drilling Company
pursuant to Paragraph 6 of the Agreed Entry. The trial court denied the remaining
branches of the motion as against Appellee Dean Polen. The trial court denied the motion
in its entirety as against Appellees Daniel Polen, Cathy Heaston, and Martha Bethel.
{¶10} It is from the January 15, 2016 Judgment Entry Appellant appeals, raising
as his sole assignment of error:
{¶11} THE TRIAL COURT ERRED IN GRANTING ONLY A SINGLE BRANCH
OF THE MOTION TO SHOW CAUSE BECAUSE THE APPELLANT PRESENTED
CLEAR AND CONVINCING EVIDENCE OF SIX SPECIFIC VIOLATIONS OF THE
AGREED ENTRY SETTLING CASE, FILED SEPTEMBER 19, 2012.
Civil Contempt
{¶12} The standard of proof in a civil contempt proceeding is clear and convincing
evidence. Brown v. Executive 200, Inc. (1980), 64 Ohio St.2d 250, 253 416 N.E.2d 610.
“Clear and convincing evidence” is that evidence “which will provide in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v.
Ledford (1954), 161 Ohio St. 469, paragraph three of the syllabus. The determination of
whether clear and convincing evidence exists is within the discretion of the trier of fact.
Brown, supra. Tuscarawas County, Case No. 2016AP020011 9
{¶13} In addition, our standard of reviewing a court's judgment in a contempt
proceeding is whether the trial court abused its discretion. Hout v. Hout, 5th Dist.
No.2007–CA–111, 2008–Ohio–2684, citing State ex rel. Celebrezze v. Gibbs (1991), 60
Ohio St.3d 69, 573 N.E.2d 62. An abuse of discretion implies the court's attitude is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d
217, 450 N.E.2d 1140.
I
{¶14} In his sole assignment of error, Appellant contends the trial court erred in
only granting one of the six branches of his motion to show cause. Specifically, Appellant
asserts the trial court abused its discretion in finding Appellee Dean Polen made a good
faith attempt to retain an independent coal expert and coal broker; in failing to find
Appellee Dean Polen intentionally and tortiously interfered with Appellant’s efforts to
market the oil and gas interests held by the Trust; in failing to find Appellee Dean Polen
and James Polen resigned their positions as co-trustees in order to circumvent paragraph
8 of the Agreed Entry; in not finding Appellee Dean Polen and James Polen in contempt
for signing a lease on behalf of the Trust with Chesapeake Exploration after their
resignations; and in not finding the holdings of the Trust were dispersed in violation of
paragraph 7(a) of the Agreed Entry.
{¶15} We address each of the five branches in turn. Tuscarawas County, Case No. 2016AP020011 10
Failure to Retain Coal Expert and Coal Broker
{¶16} Appellant asserts the trial court abused its discretion in finding Appellee
Dean Polen made a good faith attempt to retain an independent coal expert and coal
broker as required under Paragraph 4 of the Agreed Entry.
{¶17} Pursuant to Paragraph 4 of the Agreed Entry, the coal interests owned by
the Trust were to be marketed for immediate sale within 120 days of the signing of the
Agreed Entry. To facilitate the sale, an independent coal expert was to be retained. The
coal expert would, in turn, select a coal broker. The Agreed Entry is silent as to whom
was responsible for retaining the coal expert.
{¶18} The trial court made the following Findings of Fact:
11. Although not required to do so by the Agreed Entry, Dean Polen
verbally agreed to lead the effort to sell the coal interests owned by the
Polen Land Trust because he had more experience with the coal industry.
12. Dean Polen made efforts to retain a coal expert; however, none
of the parties actually retained a coal expert or coal broker.
13. The coal experts that Dean Polen spoke with informed him that
any offers they would receive would be very low. Based upon his contacts,
Dean Polen learned that the coal market was not good, and it would be Tuscarawas County, Case No. 2016AP020011 11
difficult to market the coal at that time. Dean Polen did not realize how bad
the market was at the time that the parties entered into the Agreed Entry.
14. In the process of marketing the coal, Dean Polen received an
offer from Rosebud for deep coal for $75,000.00 for 2 million tons of coal.
Rosebud also offered Dean Polen $1 per ton with an estimated 1 million
recoverable tons, which would have equaled $1 million dollars. Dean Polen
sent a letter to the beneficiaries; however, there was not a unanimous reply
from the beneficiaries to Rosebud. The lease would have been entered into
individually because part of the coal interest was owned by the trust and the
other portions were owned individually by the parties. Because the relevant
interest was not owned entirely by the trust, and Rosebud did not receive a
response from the other owners, Rosebud did not enter into a lease for the
coal. Jon Polen objected to the lease and complained to Dean Polen that
the percentages were not as provided for in the Agreed Entry.
January 15, 2016 Judgment Entry at 13-14.
{¶19} The trial court concluded Appellee Dean Polen should not be found in
contempt and he had made a good faith attempt to retain an independent coal expert and
coal broker to market the coal interest of the Trust. Tuscarawas County, Case No. 2016AP020011 12
{¶20} We find the evidence supports the trial court’s conclusions. Although
Appellee Dean Polen verbally agreed to lead the effort to sell the coal interests owned by
the Trust, he was not solely charged with that duty pursuant to Paragraph 4 of the Agreed
Entry. The duty was to be shared by the parties. While Appellee Dean Polen was
unsuccessful in his attempts to retain a coal expert, he secured an offer worth over one
million dollars from Rosebud for the coal interests. The offer, however, was not
unanimously approved by the beneficiaries, and the deal never came to fruition.
{¶21} Based upon the foregoing, we find the trial court did not abuse its discretion
in not finding Appellee Dean Polen guilty of contempt on the first branch of Appellant’s
motion to show cause.
Intentional and Tortious Interference
{¶22} Appellant contends the trial court abused its discretion in failing to find
Appellee Dean Polen intentionally and tortiously interfered with Appellant’s efforts to
market the oil and gas interests held by the Trust as required by Paragraph 7 of the
Agreed Entry.
{¶23} Paragraph 7 of the Agreed Entry authorized Appellant to market “[a]ll
remaining unleased parcels of gas and oil interests in Ohio owned by the Polen Land
Trust and listed on the “Acreage Not Leased” schedule prepared by Diversified
Engineering showing 447.28 acres that are not presently under lease.” The Agreed Entry Tuscarawas County, Case No. 2016AP020011 13
provided: “Said properties shall be leased within 120 days of the signing of this
agreement. In the event that the properties are not leased, this time period will be
extended for an additional 90 days if Jon Polen, through counsel, shows that he is in
negotiations with lessees.”
{¶24} The trial court made the following findings:
16. At the time that the Agreed Entry was entered into, Dean Polen
and James Polen did not believe that there were over 400 acres of unleased
acreage owned by the Polen Land Trust. In 2010, Dean Polen attempted
to lease all of the trust acreage to Chesapeake. Chesapeake did title work
in 2010 on the acreage owned by the trust. Based upon the results of
Chesapeake’s title work, Dean Polen and James Polen did not believe that
the trust owned any more acreage or that there was very little acreage left
to lease.
17. However, Jon Polen relied upon his belief that unleased acres
remained, and he would not have entered into the Agree Entry if he knew
that the trust did not own these acres.
18. Pursuant to the terms of paragraph 7(a) of the Agreed Entry,
Jon Polen had until January 17, 2013 to market and lease any unleased
parcels of gas and oil interests in Ohio owned by the Polen Land Trust and
listed on the “Acreage Not Leased” schedule prepared by Diversified
Engineering. If the properties were not leased but Jon Polen was in Tuscarawas County, Case No. 2016AP020011 14
negotiations with lessees by January 17, 2013, Jon Polen could request
until April 17, 2013 to market and lease the subject properties.
19. Jon Polen met Gavin Calloway in 2012. Jon Polen agreed to pay
him a percentage out of the bonus that Jon Polen would receive if a lease
were signed. Gavin Calloway spent over a year working with Jon Polen to
get the assets leased.
20. Jon Polen had not obtained a lease by January 17, 2013, and
Jon Polen was not in negotiations with an oil and gas company on January
17, 2013. Jon Polen did not request an extension beyond January 17, 2013
because he was not in negotiations. Jon Polen acknowledged that noone
[sic] interfered with his right to market any potential oil and gas interests
during the 120 day period.
21. However, in December of 2013, Gavin Calloway, on behalf of
Jon Polen, received an offer of $7,500.00 per acre with a 20 percent royalty
from AEP. AEP sent a blank sample lease for discussion purposes so that
proposed changes could be made. After receiving a copy of the blank lease
from AEP, Dean Polen contacted Gavin Calloway and told him that he did
not believe that the assets were available to be leased, and therefore, he
would not be able to sign a lease. Dean Polen and James Polen never
received a lease from AEP that contained the negotiated terms of the lease.
22. Dean Polen would not sign the lease because he believed that
only a few acres were owned by the trust and available for lease. Dean Tuscarawas County, Case No. 2016AP020011 15
Polen was advised by legal counsel that he should not sign the leases if he
believed that the trust did not own the interests. * * *
23. The Polen Land Trust never entered into a lease with AEP.
24. In the Fall of 2013, Dean Polen also met with someone from
Paloma Partners in St. Clairesville regarding a potential lease of the subject
acres. He also communicated to the Paloma Partners’ representative that
he did not believe that the Trust owned the mineral rights on these acres
that he would be willing to lease any unleased acreage if they owned it.
However, Dean Polen never heard anything else from Paloma Partners.
25. Although Dean Polen did not believe that the trust owned
additional unleased acreage, he would have been willing to let Jon Polen
market any existing interests pursuant to the Agreed Entry.
26. None of the parties presented the Court with any evidence to
suggest that a title search was performed on the approximately 447 acres
at issue. Therefore, it is unclear whether the Polen Land Trust actually
owns these interests. Additionally, none of the parties know if AEP would
have ultimately paid on the potential lease because it is unclear whether the
Polen Land Trust owns the mineral rights for the relevant acres.
January 15, 2016 Judgment Entry at 14-17. Tuscarawas County, Case No. 2016AP020011 16
{¶25} “The elements of the tort of tortious interference with contract are (1) the
existence of a contract, (2) the wrongdoer's knowledge of the contract, (3) the
wrongdoer's intentional procurement of the contract's breach, (4) lack of justification, and
(5) resulting damages.” Fred Siegel Co., L.P.A. v. Arter & Hadden, 85 Ohio St.3d 171,
1999-Ohio-260, 707 N.E.2d 853, paragraph one of the syllabus. “Establishment of the
fourth element of the tort of tortious interference with contract, lack of justification, requires
proof that the defendant's interference with another's contract was improper.” Id. at
paragraph two of the syllabus.
{¶26} The tort of intentional interference with contract occurs “when a person,
without a privilege to do so, induces or otherwise purposely causes a third person * * *
not to perform a contract with another.” A & B–Abell Elevator Co. v. Columbus/Cent. Ohio
Bldg. & Constr. Trades Council, 73 Ohio St.3d 1, 14, 651 N.E.2d 1283 (1995). As stated
earlier, the Ohio Supreme Court has adopted “Section 767 of the Restatement, which
provides guidelines to be followed in determining whether an actor's interference with
another's contract is improper.” Siegel, supra 178. “The issue in each case is whether the
interference is improper or not under the circumstances, [and] whether * * * the conduct
should be permitted without liability, despite its effect of harm to another.” Id. at 176.
Accordingly, a court determining whether an actor's interference with a contract was
improper or “privileged” should consider the following factors:
the nature of the actor's conduct, (b) the actor's motive, (c) the
interests of the other with which the actor's conduct interferes, (d) the Tuscarawas County, Case No. 2016AP020011 17
interests sought to be advanced by the actor, (e) the social interests in
protecting the freedom of action of the actor and the contractual interests of
the other, (f) the proximity or remoteness of the actor's conduct to the
interference, and (g) the relations between the parties.
Id. at 176.
{¶27} The trial court concluded Appellant did not prove by clear and convincing
evidence Dean Polen intentionally and/or tortiously interfered with his efforts to market
the oil and gas interests held by the Trust pursuant to Paragraph 7 of the Agreed Entry.
We agree.
{¶28} Appellant’s right to market any unleased oil and gas interests expired on
January 17, 2013, 120 days from the execution of the Agreed Entry. The time period
could be extended for an additional 90 days “if Jon Polen, through counsel, shows that
he is in negotiations with lessees.” Appellant acknowledged he was unsuccessful in
obtaining a lease within the 120 day marketing period, and did not seek a 90 day
extension as he was not in negotiations with lessees. Appellant also admitted no one,
including Appellee Dean Polen, interfered with his right to market the oil and gas interests
during the 120 day marketing period. Because a contract did not exist, Appellee Dean
Polen could neither intentionally nor tortiously interfere with such.
{¶29} Appellant also complains Appellee Dean Polen intentionally and tortiously
interfered with his efforts to lease the Trust assets subsequent to January 17, 2013.
Appellant points to two instances which he submits establish his claim. Tuscarawas County, Case No. 2016AP020011 18
{¶30} First, in the fall of 2013, Appellee Dean Polen met with Paloma Partners at
Appellant’s request regarding a potential lease of the subject acres. He communicated
to the Paloma Partners’ representative he did not believe the Trust owned the mineral
rights on these acres, but would be willing to lease any unleased acreage the Trust did,
in fact, own. Next, in December, 2013, Gavin Calloway, on behalf of Appellant, received
an offer from AEP. AEP sent a blank sample lease for discussion purposes. After
Appellee Dean Polen received the blank sample, he contacted Calloway and told him
(Calloway) he did not believe the assets were available to be leased; therefore, he would
not be able to sign a lease. Appellee Dean Polen never received a lease from AEP which
contained any negotiated terms.
{¶31} Assuming, arguendo, Appellee’s expressing concern regarding the Trust’s
ownership of the acreage and/or ability to lease the acreage to potential lessees
constitutes interference, we find such interference was outside the time period within
which Appellant was authorized to market the assets.
{¶32} As a component of his claim Appellee Dean Polen intentionally and
tortiously interfered with Appellant’s efforts to market the oil and gas interests, Appellant
asserts Appellee Dean Polen admitted to fraud. Appellant submits Appellee Dean Polen
did so by acknowledging he signed the Agreed Entry, which stated the Trust owned
447.28 unleased acres in Ohio, when he did not believe the Trust actually owned the land
and/or mineral interests associated with the land. Having already concluded Appellee Tuscarawas County, Case No. 2016AP020011 19
Dean Polen did not intentionally or tortiously interfere with Appellant’s efforts during the
time period outlined in paragraph 7 of the Agreed Entry, we find this assertion
unpersuasive.
{¶33} Based upon the forgoing, we find the trial court did not abuse its discretion
in failing to find Appellee Dean Pollen in contempt for intentional and tortious interference
with Appellant’s right to market certain oil and gas interests held by the Trust.
Appellee Dean Polen and James Polen’s Resignations as Co-Trustees
{¶34} Appellant next asserts the trial court abused its discretion in failing to find
Appellee Dean Polen in contempt for resigning his position, as did James Polen, as
successor co-trustee of the Trust in order to circumvent Paragraph 8 of the Agreed Entry.
{¶35} Pursuant to Paragraph 8 of the Agreed Entry, upon the sale of the coal
interests, the Trust would be dissolved and any funds remaining would be divided by the
Trust to the individuals and entities as stated at Paragraph 4.
{¶36} After attempts to lease or sell the coal interests proved unsuccessful,
Appellee Dean Polen and James Polen contacted Florida Attorney Jess Diner. Attorney
Diner reviewed the Trust, the Agreed Entry, and applicable Florida law, and advised
Appellee Dean Polen and James Polen they had the right to resign their positions.
Appellee Dean Polen and James Polen resigned their positions as co-trustee in the fall
of 2014. They provided written notice of their resignations to the beneficiaries. Pursuant Tuscarawas County, Case No. 2016AP020011 20
to the terms of the Trust, the appointment of a successor trustee required the unanimous
consent of the beneficiaries. Neither Appellant nor any of the other beneficiaries sought
appointment as the successor trustee. Due to the lack of willingness of any of the
beneficiaries to serve as successor trustee, the Trust was dissolved in accordance with
Florida law.
{¶37} The Agreed Entry does not include a provision for the resignation of the co-
trustees or the appointment of a successor trustee. The Agreed Entry does not prevent
the co-trustees from resigning, or, alternatively, require them to indefinitely remain in their
positions. Further, the Agreed Entry does not provide for the possibility the coal interests
would not be leased or sold within the timeframe specified. In addition, the Trust permits
the trustee to resign “at any time”. Based upon the foregoing, we find the trial court did
not abuse its discretion in failing to find Appellee Dean Polen in contempt for resigning
his position.
Lease with Chesapeake Exploration, LLC
{¶38} Appellant submits the trial court abused its discretion in finding the Agreed
Entry did not prohibit Appellee Dean Polen and James Polen from executing a lease on
behalf of the Trust subsequent to their resignations as co-trustees. Appellant explains
Appellee Dean Polen and James Polen executed the lease with Chesapeake Exploration,
unilaterally, and without his knowledge or consent. Appellant claims the transaction
included some of the same acreage Appellee Dean Polen previously stated was Tuscarawas County, Case No. 2016AP020011 21
unavailable for leasing, and, as a result, the Trust received only $5,000.00, rather than
the $7,500.00/acre, an offer which Appellee Dean Polen had rejected. Appellant
concludes the co-trustees disregarded their obligations to the beneficiaries.
{¶39} In its Findings of Fact, the trial court noted:
28. After his resignation, Dean Polen signed a contingency lease
with Chesapeake on behalf of the trust, which included approximately 86
acres. Although Dean Polen did not believe that the Polen Land Trust
owned these mineral rights, the contingency lease would cover the acreage
in case a Court would later find that the Polen Land Trust owned the mineral
rights on those properties. Dean Polen entered the contingency lease on
behalf of the trust in order to protect other oil and gas interests of the Polen
Land Trust.
29. Dean Polen sought the consent of his fellow beneficiaries before
entering into the contingency lease, but he did not receive consent from Jon
Polen. Jon Polen objected to the Chesapeake contingency lease because
he felt that he should have received a higher percentage, that he should
have been involved in the negotiations, and because there had previously
been a higher offer involving the same acreage.
30. After their resignations, Dean Polen and James Polen signed
several deeds and documents, and distributed assets pursuant to the Trust.
The 86 acres were not dispersed because the successor co-trustees did not Tuscarawas County, Case No. 2016AP020011 22
believe that those were currently owned by the trust; and therefore, there
was nothing to disperse.
January 15, 2016 Judgment Entry at 17-18.
{¶40} The trial court found Appellee Dean Polen and James Polen did not sign
the contingency lease with Chesapeake until after Appellant’s right to market and lease
any unleased gas and oil interests had expired. The trial court further found, because
nothing in the Agreed Entry prevented the successor co-trustees from entering into the
contingency lease, Appellee Dean Polen and James Polen did not violate the Agreed
Entry.
{¶41} We agree with the trial court. Nothing in the Agreed Entry prevented
Appellee Dean Polen from executing a contingency lease. Accordingly, we find the trial
court did not abuse its discretion in not finding Appellee Dean Polen in contempt for
signing the contingency lease.
Disbursement of Trust Assets
{¶42} Appellant posits the trial court abused its discretion in failing to find Appellee
Dean Polen and James Polen in contempt for violating the Agreed Entry relative to the
disbursement of Trust assets. Specifically, Appellant claims the trial court abused its
discretion in finding Paragraph 7(b) of the Agreed Entry does not exist independent of
Paragraph 7(a).
{¶43} When the Trust was dissolved, a final accounting was prepared at the
direction of Attorney Diner and filed with the trial court. None of the beneficiaries of the
Trust objected to the final accounting either in Ohio or in Florida. Tuscarawas County, Case No. 2016AP020011 23
{¶44} As set forth, supra, Paragraph 7 of the Agreed Entry provides:
All remaining unleased parcels of gas and oil interests in Ohio owned
by the Polen Land Trust and listed on the “Acreage Not Leased” schedule
prepared by Diversified Engineering showing 447.28 acres that are not
a. Be marketed by Jon Polen, with the assistance of his counsel, for
lease. Said properties shall be leased within 120 days of the signing of this
agreement. In the event that the properties are not leased, this time period
will be extended for an additional 90 days if Jon Polen, through counsel,
b. After payment of the initial 10% of the proceeds of said leases to
J.P. Morgan Chase, as Trustee of the Robert C. Polen Trust, all bonus and
royalty payments resulting from such remaining gas and oil interests shall
i. 20% to Dean W. Polen, Jr., Daniel Polen, Martha Bethels [sic],
iii. 50% to Jon Polen
iv. James Polen and Rodney Polen waive any claims they may have
in the said Estate of Robert M. Polen to any funds realized by said Estate
under this Paragraph 7. Tuscarawas County, Case No. 2016AP020011 24
{¶45} Paragraph 7(b) clearly applies to the distribution of any bonuses and royalty
payments received as a result of any oil and gas leases executed during the time frame
contemplated in Paragraph 7(a). We find no other way to interpret this provision. The
manner in which the assets were to be distributed upon termination of the Trust is not
contemplated in the Agreed Entry. Further, the Trust has its own distribution terms.
Appellant did not object to the distribution made pursuant to the Trust.
{¶46} We find the trial court did not abuse its discretion in failing to find Appellant
Dean Polen and James Polen in contempt for violating the Agreed Entry relative to the
disbursement of Trust assets.
{¶47} The judgment of the Tuscarawas County Court of Common Pleas is
affirmed.
By: Hoffman, J.
Gwin, P.J. and
Baldwin, J. concur