[Cite as Trico Land Co., L.L.C. v. Kenoil Producing, L.L.C., 2013-Ohio-2065.]
COURT OF APPEALS HOLMES COUNTY, OHIO FIFTH APPELLATE DISTRICT
TRICO LAND COMPANY, LLC : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff-Appellant : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : Case No. 13CA001 KENOIL PRODUCING, LLC : : : Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Holmes County Court of Common Pleas, Case No.12CV007
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: May 16, 2013
APPEARANCES:
For Appellant: For Appellee:
Audrey E. Varwig James M. Richard Dickie, McCamey & Chilcote, P.C. Richard Law Office, LLC 2109 Stella Court 127 East Liberty Street, Suite 100 Columbus, Ohio 43215 P.O. Box 1207 Wooster, Ohio 44691 Baldwin, J.
{¶1} Plaintiff-appellant Trico Land Company, LLC appeals from the
September 24, 2012 and January 24, 2013 Judgment Entries of the Holmes County
Court of Common Pleas denying its Motion for Summary Judgment while granting that
filed by defendant-appellee Kenoil Producing, LLC.
STATEMENT OF THE FACTS AND CASE
{¶2} On December 19, 2008, appellant Trico Land Company, LLC acquired
title, via a limited warranty deed, to approximately 126.85 acres in Holmes County
from Kenlo Properties, LLC.
{¶3} The subject property was subject to two recorded oil and gas leases held
by appellee Kenoil Producing, LLC. Appellant did not notify appellee of its acquisition
of the fee simple interest after it had acquired title to the property.
{¶4} Kenlo had entered into one of the oil and gas leases with appellee on
October 1, 2008, although the same was not recorded until October 24, 2008. The
lease stated that it would remain in force for a primary term of ten years. Such lease
further provided, in pertinent part, as follows: “If no well be commenced on said land
on or before the 1st day of October, 2009, this lease shall terminate as to both parties,
unless the lessee shall on or before that date pay or tender to the lessor or the
lessor’s credit at the address above, which shall continue as the depository regardless
of changes in ownership of said land, the sum of one hundred tewnty (sic) seven
dollars, which shall operate as rental and cover the privilege of deferring the
commencement of a well for 12 months from said date…” {¶5} Appellee did not commence drilling a well on or before October 1, 2009
and did not make any payments to appellant in 2009 or 2012. Once appellee, after its
own investigation, discovered that appellant had acquired title to the subject land,
appellee, on or about September 22, 2011, tendered a check in the amount of
$1,270.00 to appellant. The check indicated that the $1,270.00 represented 10 years
of lease rentals (at the rate of $127.00 a year). In a letter to appellant dated October
19, 2011, appellee stated that it had tendered the rental payment to appellant and
believed that it was in compliance with the terms of the oil and gas lease. The letter
further provided, in pertinent part, as follows: “If for any reason you feel we are not in
compliance with the terms of the Lease, paragraph four on page two of the Lease
spells out actions and remedies, including granting the Lessee (Kenoil) thirty days to
remedy.”
{¶6} The paragraph that appellee was referring to in such letter provides as
follows: “In the event Lessor considers that Lessee has not complied with all the
obligations hereunder, Lessor shall notify Lessee in writing by certified mail stating
specifically in what respects Lessee has breached this contract. Lessee shall then
have thirty (30) days after receipt of said notice within which to meet or commence to
meet all or any part of the breaches alleged by the Lessor. The service of said notice
shall be precedent to the bringing of any action by Lessor on said lease of thirty (30)
days after service of such notice on Lessee…”
{¶7} On January 24, 2012, appellant filed a complaint against appellee to
quiet title and for slander of title. {¶8} Thereafter, on February 16, 2012, appellant filed an Affidavit of
Abandonment under R.C. 5301.56 with the Holmes County Recorder, stating that
appellee’s oil and gas interest was considered abandoned and was vested in
appellant because no wells had been commenced in 2009 or 2012 and no payment in
the amount of $127.00 had been received on or before October 1, 2009. In response,
appellee, on March 30, 2012, filed an Affidavit of Preservation of Mineral Rights
pursuant to R.C. 5301.56. Appellee, in such affidavit, contended that the oil and gas
lease had not terminated and that its rights remained effective.
{¶9} On August 27, 2012, appellant filed a Motion for Summary Judgment.
Appellant, in its motion, alleged that the oil and gas lease granted to appellee had
terminated when appellee failed to commence a well or make the required rental
payment by October 1, 2009. Appellant further argued that, by recording the Affidavit
of Preservation of Mineral Rights on March 30, 2012, appellee had slandered
appellant’s title as a matter of law. Appellee filed a memorandum in opposition to
appellant’s Motion for Summary Judgment on September 18, 2012. Pursuant to a
Judgment Entry filed on September 24, 2012, the trial court denied such motion. The
trial court, in its Judgment Entry, noted that appellee had alleged that appellant did not
notify appellee of its acquisition of the subject property and did not provide appellee
with notice of material default and an opportunity to cure the default. The trial court
found that, therefore, there was a factual dispute between the parties that could not be
resolved without a trial.
{¶10} On October 4, 2012, appellant filed a motion seeking reconsideration.
Such motion was denied. On October 19, 2012, appellee filed a Motion for Summary Judgment on Count II of appellant’s complaint, which asserted a claim for slander of
title. Appellant filed a memorandum in opposition to the same on November 9, 2012.
{¶11} Pursuant to a Judgment Entry filed on January 24, 2012, the trial court
granted appellee’s Motion for Summary Judgment on Count II. The trial court, in its
Judgment Entry, found that appellee did not receive proper notification of default.
{¶12} Appellant now raises the following assignments of error on appeal:
{¶13} “I. THE TRIAL COURT ERRED WHEN IT DENIED PLAINTIFF-
APPELLANT’S MOTION FOR SUMMARY JUDGMENT.”
{¶14} “II. THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANT-
APPELLEE’S MOTION FOR SUMMARY JUDGMENT.”
{¶15} As a preliminary matter, we must first determine whether the order under
review is a final, appealable order. If an order is not final and appealable, then we have
no jurisdiction to review the matter and must dismiss it. See Gen. Acc. Ins. Co. v. Ins.
Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989). In the event that the
parties to the appeal do not raise this jurisdictional issue, we may raise it sua sponte.
See Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 541 N.E.2d 64 (1989),
syllabus; Whitaker–Merrell v. Carl M. Geupel Const. Co., 29 Ohio St.2d 184, 186, 280
N.E.2d 922 (1972).
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[Cite as Trico Land Co., L.L.C. v. Kenoil Producing, L.L.C., 2013-Ohio-2065.]
COURT OF APPEALS HOLMES COUNTY, OHIO FIFTH APPELLATE DISTRICT
TRICO LAND COMPANY, LLC : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff-Appellant : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : Case No. 13CA001 KENOIL PRODUCING, LLC : : : Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Holmes County Court of Common Pleas, Case No.12CV007
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: May 16, 2013
APPEARANCES:
For Appellant: For Appellee:
Audrey E. Varwig James M. Richard Dickie, McCamey & Chilcote, P.C. Richard Law Office, LLC 2109 Stella Court 127 East Liberty Street, Suite 100 Columbus, Ohio 43215 P.O. Box 1207 Wooster, Ohio 44691 Baldwin, J.
{¶1} Plaintiff-appellant Trico Land Company, LLC appeals from the
September 24, 2012 and January 24, 2013 Judgment Entries of the Holmes County
Court of Common Pleas denying its Motion for Summary Judgment while granting that
filed by defendant-appellee Kenoil Producing, LLC.
STATEMENT OF THE FACTS AND CASE
{¶2} On December 19, 2008, appellant Trico Land Company, LLC acquired
title, via a limited warranty deed, to approximately 126.85 acres in Holmes County
from Kenlo Properties, LLC.
{¶3} The subject property was subject to two recorded oil and gas leases held
by appellee Kenoil Producing, LLC. Appellant did not notify appellee of its acquisition
of the fee simple interest after it had acquired title to the property.
{¶4} Kenlo had entered into one of the oil and gas leases with appellee on
October 1, 2008, although the same was not recorded until October 24, 2008. The
lease stated that it would remain in force for a primary term of ten years. Such lease
further provided, in pertinent part, as follows: “If no well be commenced on said land
on or before the 1st day of October, 2009, this lease shall terminate as to both parties,
unless the lessee shall on or before that date pay or tender to the lessor or the
lessor’s credit at the address above, which shall continue as the depository regardless
of changes in ownership of said land, the sum of one hundred tewnty (sic) seven
dollars, which shall operate as rental and cover the privilege of deferring the
commencement of a well for 12 months from said date…” {¶5} Appellee did not commence drilling a well on or before October 1, 2009
and did not make any payments to appellant in 2009 or 2012. Once appellee, after its
own investigation, discovered that appellant had acquired title to the subject land,
appellee, on or about September 22, 2011, tendered a check in the amount of
$1,270.00 to appellant. The check indicated that the $1,270.00 represented 10 years
of lease rentals (at the rate of $127.00 a year). In a letter to appellant dated October
19, 2011, appellee stated that it had tendered the rental payment to appellant and
believed that it was in compliance with the terms of the oil and gas lease. The letter
further provided, in pertinent part, as follows: “If for any reason you feel we are not in
compliance with the terms of the Lease, paragraph four on page two of the Lease
spells out actions and remedies, including granting the Lessee (Kenoil) thirty days to
remedy.”
{¶6} The paragraph that appellee was referring to in such letter provides as
follows: “In the event Lessor considers that Lessee has not complied with all the
obligations hereunder, Lessor shall notify Lessee in writing by certified mail stating
specifically in what respects Lessee has breached this contract. Lessee shall then
have thirty (30) days after receipt of said notice within which to meet or commence to
meet all or any part of the breaches alleged by the Lessor. The service of said notice
shall be precedent to the bringing of any action by Lessor on said lease of thirty (30)
days after service of such notice on Lessee…”
{¶7} On January 24, 2012, appellant filed a complaint against appellee to
quiet title and for slander of title. {¶8} Thereafter, on February 16, 2012, appellant filed an Affidavit of
Abandonment under R.C. 5301.56 with the Holmes County Recorder, stating that
appellee’s oil and gas interest was considered abandoned and was vested in
appellant because no wells had been commenced in 2009 or 2012 and no payment in
the amount of $127.00 had been received on or before October 1, 2009. In response,
appellee, on March 30, 2012, filed an Affidavit of Preservation of Mineral Rights
pursuant to R.C. 5301.56. Appellee, in such affidavit, contended that the oil and gas
lease had not terminated and that its rights remained effective.
{¶9} On August 27, 2012, appellant filed a Motion for Summary Judgment.
Appellant, in its motion, alleged that the oil and gas lease granted to appellee had
terminated when appellee failed to commence a well or make the required rental
payment by October 1, 2009. Appellant further argued that, by recording the Affidavit
of Preservation of Mineral Rights on March 30, 2012, appellee had slandered
appellant’s title as a matter of law. Appellee filed a memorandum in opposition to
appellant’s Motion for Summary Judgment on September 18, 2012. Pursuant to a
Judgment Entry filed on September 24, 2012, the trial court denied such motion. The
trial court, in its Judgment Entry, noted that appellee had alleged that appellant did not
notify appellee of its acquisition of the subject property and did not provide appellee
with notice of material default and an opportunity to cure the default. The trial court
found that, therefore, there was a factual dispute between the parties that could not be
resolved without a trial.
{¶10} On October 4, 2012, appellant filed a motion seeking reconsideration.
Such motion was denied. On October 19, 2012, appellee filed a Motion for Summary Judgment on Count II of appellant’s complaint, which asserted a claim for slander of
title. Appellant filed a memorandum in opposition to the same on November 9, 2012.
{¶11} Pursuant to a Judgment Entry filed on January 24, 2012, the trial court
granted appellee’s Motion for Summary Judgment on Count II. The trial court, in its
Judgment Entry, found that appellee did not receive proper notification of default.
{¶12} Appellant now raises the following assignments of error on appeal:
{¶13} “I. THE TRIAL COURT ERRED WHEN IT DENIED PLAINTIFF-
APPELLANT’S MOTION FOR SUMMARY JUDGMENT.”
{¶14} “II. THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANT-
APPELLEE’S MOTION FOR SUMMARY JUDGMENT.”
{¶15} As a preliminary matter, we must first determine whether the order under
review is a final, appealable order. If an order is not final and appealable, then we have
no jurisdiction to review the matter and must dismiss it. See Gen. Acc. Ins. Co. v. Ins.
Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989). In the event that the
parties to the appeal do not raise this jurisdictional issue, we may raise it sua sponte.
See Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 541 N.E.2d 64 (1989),
syllabus; Whitaker–Merrell v. Carl M. Geupel Const. Co., 29 Ohio St.2d 184, 186, 280
N.E.2d 922 (1972).
{¶16} An appellate court has jurisdiction to review and affirm, modify, or reverse
judgments or final orders of the trial courts within its district. See Section 3(B)(2), Article
IV, Ohio Constitution; see also R.C. 2505.02 and Fertec, LLC v. BBC & M Engineering,
Inc., 10th Dist. No. 08AP–998, 2009-Ohio-5246, 2009 WL 3164752. If an order is not final and appealable, then we have no jurisdiction to review the matter and must dismiss
it. See Gen. Acc. Ins. Co., supra at 20.
{¶17} When determining whether a judgment or order is final and appealable,
an appellate court engages in a two-step analysis. First, we must determine if the order
is final within the requirements of R.C. 2505.02. Second, if the order satisfies the
requirements of R.C. 2505.02, we must determine whether Civ.R. 54(B) applies and, if
so, whether the order contains a certification that there is no just reason for delay. Gen.
Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 21, 540 N.E.2d 266 (1989). In
order to be final and appealable, the order must comply with R.C. 2505.02 and Civ.R.
54(B). Shearer v. Director O.D.J.F.S., 5th Dist. No. 2011AP070033, 2012-Ohio-2294, ¶
22.
{¶18} To constitute a final order, an order must fit into one of the categories in
R.C. 2505.02(B), which provides in pertinent part:
{¶19} “(B) An order is a final order that may be reviewed, affirmed, modified, or
reversed, with or without retrial, when it is one of the following:
{¶20} “(1) An order that affects a substantial right in an action that in effect
determines the action and prevents a judgment;
{¶21} “(2) An order that affects a substantial right made in a special proceeding
or upon a summary application in an action after judgment;
{¶22} “* * *
{¶23} “(4) An order that grants or denies a provisional remedy and to which both
of the following apply: {¶24} “(a) The order in effect determines the action with respect to the
provisional remedy and prevents a judgment in the action in favor of the appealing party
with respect to the provisional remedy.
{¶25} “(b) The appealing party would not be afforded a meaningful or effective
remedy by an appeal following final judgment as to all proceedings, issues, claims, and
parties in the action.
{¶26} * * *”
{¶27} Civ.R. 54(B) provides for entry of a final order when the claims of all
parties have not been adjudicated upon a finding of no just cause for delay. The rule
states:
{¶28} “(B) Judgment upon multiple claims or involving multiple parties. When
more than one claim for relief is presented in an action whether as a claim,
counterclaim, cross-claim, or third-party claim, and whether arising out of the same or
separate transactions, or when multiple parties are involved, the court may enter final
judgment as to one or more but fewer than all of the claims or parties only upon an
express determination that there is no just reason for delay. In the absence of a
determination that there is no just reason for delay, any order or other form of decision,
however designated, which adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties, shall not terminate the action as to any of the
claims or parties, and the order or other form of decision is subject to revision at any
time before the entry of judgment adjudicating all the claims and the rights and liabilities
of all the parties.” {¶29} In the case sub judice, appellant, in its complaint, filed two counts
against appellee. Appellant, in its first count, sought to quiet title and, in its second
count, set forth a claim of slander of title. Appellee, in its Motion for Summary
Judgment, only sought judgment in its favor on Count II (slander of title). We find,
therefore, that Count I remains pending and that there is no final, appealable order in
this case.
{¶30} Appellant’s appeal is, therefore, dismissed. This Court lacks jurisdiction
over the appeal.
By: Baldwin, J.
Hoffman, P.J. and
Delaney, J. concur.
HON. CRAIG R. BALDWIN
HON. WILLIAM B. HOFFMAN
HON. PATRICIA A. DELANEY
CRB/dr IN THE COURT OF APPEALS FOR HOLMES COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: TRICO LAND CO., LLC : : Plaintiff - Appellant : JUDGMENT ENTRY : : -vs- : : Case No. 13CA001 KENOIL PRODUCING, LLC : : Defendant - Appellee : :
For the reasons stated in our accompanying Opinion on file, the appeal is
dismissed. Costs assessed to appellant.