[Cite as Helms v. Whitney,
2014-Ohio-2413.]
COURT OF APPEALS
HOLMES COUNTY, OHIO
FIFTH APPELLATE DISTRICT
DARRELL E. HELMS, ET. Al., : JUDGES:
:
: Hon. Sheila G. Farmer, P.J.
Plaintiffs - Appellees : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
:
-vs- :
:
THOMAS C. WHITNEY, ET. Al., : Case No. 13CA014
:
:
Defendants - Appellants : OPINION
CHARACTER OF PROCEEDING: Appeal from the Holmes County
Court of Common Pleas, Case No.
12-CV-0145
JUDGMENT: Affirmed in part; Reversed in part
DATE OF JUDGMENT: June 4, 2014
APPEARANCES:
For Plaintiffs-Appellees For Defendants-Appellants
THOMAS D. WHITE ROBERT W. ECKINGER
CHRISTOPHER M. WHITE Eckinger Law Offices, LTD.
ALYSSE L. GILES 1201- 30th Street, N.W., Suite 101-B
White Law Office, Co. Canton, OH 44709
209 N. Washington St.
Millersburg, OH 44654
Holmes County, Case No. 13CA014 2
Baldwin, J.
{¶1} Defendants-appellants Thomas C. Whitney and Donald E. Ridgeway
appeal from the November 6, 2013 Decision and Judgment Entry of the Holmes County
Court of Common Pleas.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant Thomas Whitney is the permit owner of Crider Number 4 well,
which is located on property owned by appellees Darrell and Dortha Helms. The well
was completed in 1918.
{¶3} In January of 1976, appellees and appellant Ridgeway1 executed an oil
and gas lease. The lease, which was recorded in 1977, stated that “[l]essee agrees to
commence a well on said premises within 6 months from this date or pay Lessor
…$34.00 for each 6 months thereafter until such well is commenced or the lease
surrendered.” Under the terms of the lease, the lease could be held if oil and gas was
produced on the property and royalties were to be paid to appellees. No new well was
ever drilled on the premises.
{¶4} On or about March 15, 1976, appellant Ridgeway transferred his rights
under the lease and to the well to appellant Whitney. The trial court found that, from
1976 to approximately the end of 2008, some oil and gas was produced and royalties
were paid.
{¶5} On July 16, 1981, appellees recorded an Affidavit of Non-Compliance with
the Holmes County Recorder. Appellees, in their affidavit, indicated that they had not
1
Appellant Ridgeway testified that he bought the well from Elvi and Charles Crider, who owned the land
prior to appellees.
Holmes County, Case No. 13CA014 3
received any royalties under the lease, that there were no producing wells on the land in
the lease and that the lease was null and void.
{¶6} In 2009, a storm blew a goat pen, which was owned by appellees, onto
the electric utility pole which supplied electricity to the pump on the Cider Number 4
well. As a result, the pole broke and electric power to the well was disrupted. The
parties agree that there was a disagreement between them regarding placement of a
new electric pole. Appellants assert that appellees interfered with restoring electricity to
the pump while appellees dispute this. According to appellant Whitney, a representative
of the electric company came out to the property and designated where the pole needed
to be set, but appellees would not allow the pole to be set there and the representative
left. Without the new pole, appellants claim they were unable to produce the well.
{¶7} On April 3, 2012, the Ohio Department of Natural Resources Division of
Mineral Resources Management (hereinafter “ODNR”) conducted an inspection of the
subject well after a complaint was received that the well was not producing. In its report,
the ODNR found that the well was not producing and that no production had been
reported since 2009 and that there was no identification on the tank or well. The ODNR
further stated that the electricity had been disconnected and ordered appellant Whitney
to plug, produce or sell the well by July 4, 2012. Appellants did not do so. A follow-up
inspection was conducted on May 2, 2012. In its report, the ODNR stated that the well
was still not producing and that there was still no identification. Following an inspection
on July 11, 2012, the ODNR found that the well was “still not producable.” No oil has
been produced from the well since the storm in 2009. According to appellee Dortha
Helm, appellees have not received any royalty payments since January of 2009. At the
Holmes County, Case No. 13CA014 4
bench trial in this matter, appellant Whitney agreed that the check in January of 2009
was the last royalty check and that there was still an electrical problem with producing
the well. No oil has been produced from the well since the storm in 2009.
{¶8} In September or October of 2012, appellant Whitney painted identification
on the tank.
{¶9} Thereafter, on November 28, 2012, appellees filed a complaint for
declaratory judgment. Appellees, in their complaint, asked that various leases,
including the one at issue in this case, be declared null and void2. The matter
proceeded to a bench trial on July 19, 2013 and August 14, 2013. After the trial, the
parties filed proposed findings of fact and conclusions of law.
{¶10} Pursuant to a Decision and Judgment Entry filed on November 6, 2013,
the trial court found that it was not appellees’ fault that production of the subject well
had ceased and ordered that the subject lease was forfeited. The trial court ordered that
the lease be cancelled of record. The trial court further stated, in relevant part, as
follows: “pursuant to Ohio Revised Code section 1509.062 the Court feels that the well
is inactive, has not been properly produced and therefore must be plugged immediately
by the Defendants.” The trial court ordered that the plugging be completed no less than
four months from the date of the trial court’s decision.
{¶11} Appellants now raise the following assignments of error on appeal:
{¶12} THE TRIAL COURT’S FINDING THAT THE APPELLEES DID NOT
PREVENT THE APPELLANTS FROM PRODUCING THE CRIDER WELL WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
2
The trial court, in an Order filed on June 24, 2013, declared the other oil and gas leases to be null and
void.
Holmes County, Case No. 13CA014 5
{¶13} THE TRIAL COURT’S FINDING THAT A GENERATOR COULD HAVE
BEEN SUPPLIED BY THE APPELLANTS TO PRODUCE THE CRIDER WELL WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶14} THE TRIAL COURT’S FINDING THAT A NEW ELECTRIC POLE WAS
SET SOMETIME IN EITHER 2011 OR 2012 AND THAT POWER COULD HAVE BEEN
RUN TO THE WELL AT THAT TIME WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.
{¶15} THE TRIAL COURT’S ORDER THAT THE CRIDER WELL MUST BE
PLUGGED WITHIN FOUR MONTHS OF THE COURT’S DECISION WAS CONTRARY
TO LAW.
{¶16} THE TRIAL COURT’S FINDING THAT THE CRIDER WELL HAD AN
INACTIVE STATUS PURSUANT TO R.C. 1509.062(A)(1) WAS CONTRARY TO LAW.
I, II III
{¶17} Appellants, in their first three assignments of error, challenge certain
findings made by the trial court as being against the manifest weight of the evidence.
{¶18} We note that a judgment supported by some competent, credible evidence
will not be reversed by a reviewing court as against the manifest weight of the evidence.
C.E. Morris Co. v. Foley Construction Co., 54 Ohio St.2d 279, 280,
376 N.E.2d 578
(1978). A reviewing court must not substitute its judgment for that of the trial court
where there exists some competent and credible evidence supporting the judgment
rendered by the trial court. Myers v. Garson,
66 Ohio St.3d 610, 1993–Ohio–9, 614 N.E
.2d 742. The underlying rationale for giving deference to the findings of the trial court
rests with the knowledge that the trial judge is best able to view the witnesses and
Holmes County, Case No. 13CA014 6
observe their demeanor, gestures, and voice inflections, and use these observations in
weighing the credibility of the proffered testimony. Seasons Coal Co. v. City of
Cleveland,
10 Ohio St.3d 77, 80,
461 N.E.2d 1273 (1984).
{¶19} While appellees argue that this Court should apply an abuse of discretion
standard, we note that when a declaratory judgment action involves, as here, issues of
fact, a manifest weight of the evidence standard is applicable. See, for example, Blair v.
McDonagh, 177 Ohio App.3d 262,
2008-Ohio-3698,
894 N.E.2d 377 (1st Dist).
{¶20} The trial court, in its November 6, 2013 Decision and Judgment Entry,
found, in relevant part, as follows: “The Court finds that the parties both agree that there
was a new electric line pole that was set up sometime in the year 2011 or 2012 and that
power could have been run to the well at that time. In addition, the Court finds that even
with the electric supply terminated that a generator could have been supplied by
Defendants to produce this well.
{¶21} “The Court finds that it is not the fault of the Plaintiffs that production has
been ceased.”
{¶22} Appellants maintain that such findings are against the manifest weight of
the evidence.
{¶23} There is no dispute that, after the storm blew the electric pole down, the
parties were unable to agree where a new pole should be placed. Appellant Ridgeway
testified that appellees did not want the pole in their yard. Appellee Dortha Helms
testified that she did not want the pole to be put in the yard because of concerns that
the pole placement would interfere with gas lines that her son put in. She testified that “I
don’t need it in my yard when he’s got an acre around his well. “ Trial Transcript at 53.
Holmes County, Case No. 13CA014 7
She further testified that she would not have minded if appellant put a pole in the
pasture and that she wanted the pole put closer to the well. Appellant Darrell Helms
testified that he disagreed with where appellants wanted the pole to be located. The
following is an excerpt from his testimony:
{¶24} Q. The uh, Ridgeway and Whitney stated that the, they had the utility
company there to set a new pole and the Helms would not allow the electric company to
set a pole there on their property…
{¶25} Q: Do you agree with that statement by them or you disagree with it or do
you not know.
{¶26} A: Well he was wanting to set it. I disagreed with it because why not
over there instead of there.
{¶27} Q: Was the pole finally set?
{¶28} A: No it wasn’t set.
{¶29} Q: But you didn’t want it set where they wanted it. You wanted it
somewhere else?
{¶30} A: Well across the fence he wanted it in the yard to go up in the up to the
gate and I got a gas line that runs through there.
{¶31} Q: This is the line that your son put in?
{¶32} A: Yes.
{¶33} Q: And you didn’t want it near the gas line?
{¶34} A: Well I didn’t want no pole setting there. Why have a pole that close to
the other pole?
{¶35} Trial Transcript at 95.
Holmes County, Case No. 13CA014 8
{¶36} He also testified that he did not want a pole near a bush in the yard and
that putting the pole where appellants wanted would have affected the bush and the gas
line put in by their son that went to appellees’ house. According to appellant Darrell
Helms, a pole could have been placed where the pole that blew down was located.
{¶37} Appellants contend that appellee Darrell Helms, on or around October of
2012, placed a tractor on appellee’s driveway while appellants were on the property,
effectively blocking appellants from exiting. Appellant Whitney testified that the previous
fall, he went to do something at the property and his access was blocked by a tractor.
When asked at trial if he had done so, appellant Darrell Helms testified that he never
blocked appellant Ridgeway from coming in and out of the property. He admitted
placing a 1995 Chevy pickup truck in the driveway blocking appellants, but testified that
he did so because “he was on the property up there and he wasn’t suppose (sic) to be.”
Trial Transcript at 98. He testified that appellant Ridgeway was not working on the well
at the time and that he had told him “before he went through not to go up there…” Trial
Transcript at 98. Appellant Darrell Helms further testified that after the first day of trial,
his granddaughter had parked her Honda in the driveway, but that the Honda did not
block access.
{¶38} Based on the foregoing, we find that the trial court’s finding that appellees
did not prevent appellants from producing the well was not against the manifest weight
of the evidence. The trial court, as trier of fact, was in the best position to access
credibility and found appellees to be credible.
{¶39} Appellants also take issue with the trial court’s finding that appellants
could have used a generator to produce the Crider well. Appellant Whitney did not deny
Holmes County, Case No. 13CA014 9
that it would have been possible to put a gas powered pump on the well, but testified
that it would be unreasonable to do so because electricity was available and that it
would have been very expensive to do so. Appellant Whitney also testified that in 2012,
he reported to the ODNR that 45 barrels were produced from the well. However, he
testified that the oil probably was not brought out of the ground in 2012 but was
previously produced and that no royalties were paid. He testified that they used their
temporary engine sometime between April 4, 2012 and July of 2012. Later, appellant
Whitney testified that some of the 45 barrels may have been brought out in 2012
“because I think we did run it some with that gasoline engine.” Trial transcript at 26.
When asked whether it was possible that a gas engine could produce it without
electricity, he testified that “ I would say gasoline without this uh, this is a rather small
engine and I don’t know how well it would work on a continuing basis anyhow.” Trial
Transcript at 26. Appellant Whitney testifies that it was not practical to manually start up
a gas engine.
{¶40} Based on the foregoing, we find that there was competent, credible
evidence supporting the trial court’s finding that a gas generator could have been used
to produce the Crider well.
{¶41} Appellants also argue that the trial court’s finding that a new electric pole
was set sometime in 2011 or 2012 and that electric power could have been run to the
well at that time was against the manifest weight of the evidence. Appellee Dortha Helm
testified that a new electric pole which is visible in several of photos that were admitted
as exhibits has “been there for a long time.” Trial Transcript at 156. On cross-
examination, she was unable to say when the photos were taken, but testified that the
Holmes County, Case No. 13CA014 10
photos were taken “maybe two or three years ago or more.” Trial Transcript at 159. Her
husband testified that the new pole could have been erected three or four years ago.
When questioned about the new pole, appellant Whitney testified that he did not know
how the pole came about and that he first saw the new pole after the case sub judice
was filed in November of 2012. He indicated that he would go onto the property at least
twice a year. Appellant Ridgeway testified that he visited the well every other month
and that he did not know when the new pole was erected. He also indicated that he did
not notice the new pole until after the lawsuit was filed.
{¶42} Based on the testimony that the photos taken by appellee Dortha Helms
showing the new pole were taken two or three years before the trial, we find that the trial
court’s finding was not against the manifest weight of the evidence. Moreover,
assuming, arguendo, that appellants are correct that the trial court’s finding about the
new pole as against the manifest weight of the evidence, we note that the trial court
alternatively stated that, “[i]n addition,…even with the electrical supply terminated…a
generator could have been supplied by the Defendants to produce this well.” Any error
with respect to the finding about the placement of the new pole was, therefore,
harmless.
{¶43} Appellants’ first, second and third assignments of error are, therefore,
overruled.
IV
{¶44} Appellants, in their fourth assignment of error, argue that the trial court did
not have jurisdiction to order that the well must be plugged within four months.
Holmes County, Case No. 13CA014 11
{¶45} We review the issue of subject-matter jurisdiction de novo. State ex rel.
Post v. Speck, 185 Ohio App.3d 828, 2010–Ohio–105,
925 N.E.2d 1042, ¶ 10 (3d Dist.).
{¶46} R.C. 1509.02 states, in relevant part, as follows: “There is hereby created
in the department of natural resources the division of oil and gas resources
management, which shall be administered by the chief of the division of oil and gas
resources management. The division has sole and exclusive authority to regulate the
permitting, location, and spacing of oil and gas wells and production operations within
the state, …” As noted by the court in State, ex rel. Morrison v. Beck Energy Corp., 9th
Dist. Summit No. 2593, 2013-Ohio- 356,” R.C. Chapter 1509 thus provides a
comprehensive regulatory scheme for oil and gas wells operations in the state.” Id at
paragraph 17.
{¶47} R.C. 1509.062, which is cited by the trial court, states, in relevant part, as
follows: “(A)(1) The owner of a well that has not been completed, a well that has not
produced within one year after completion, an existing well that is not a horizontal well
and that has no reported production for two consecutive reporting periods as reported in
accordance with section 1509.11 of the Revised Code, or an existing horizontal well that
has no reported production for eight consecutive reporting periods as reported in
accordance with section 1509.11 of the Revised Code shall plug the well in accordance
with section 1509.12 of the Revised Code, obtain temporary inactive well status for the
well in accordance with this section, or perform another activity regarding the well that is
approved by the chief of the division of oil and gas resources management.” (Emphasis
added). In turn, R.C. 1509.12 provides, in relevant part, as follows: ”(B) When the chief
finds that a well should be plugged, the chief shall notify the owner to that effect by
Holmes County, Case No. 13CA014 12
order in writing and shall specify in the order a reasonable time within which to comply.
No owner shall fail or refuse to plug a well within the time specified in the order. Each
day on which such a well remains unplugged thereafter constitutes a separate offense.“
(Emphasis added).
{¶48} Moreover, R.C. 1509.13(A) states that a person plugging and abandoning
a well must have a permit to do so issued by the chief.
{¶49} When the meaning of the statute is “clear and unambiguous,” the statute
is to be applied “as written.” Boley v. Goodyear Tire & Rubber Co., 125 Ohio St.3d 510,
2010–Ohio–2550,
929 N.E.2d 448, ¶ 20. As noted by appellants, the above statutes
clearly and unambiguously “position the Chief as the sole initial decider of all issues
related the plugging of Ohio wells.” We find, therefore, that the trial court did not have
jurisdiction to order the well plugged.
{¶50} Based on the foregoing, appellant’s fourth assignment of error is
sustained.
V
{¶51} Appellants, in their fifth assignment of error, argue that the trial court’s
finding that the Crider well has an inactive status pursuant to R.C. 1509.062(A)(1) was
contrary to law because the Revised Code does not give the trial court authority to
declare a well to have an inactive status.
{¶52} Appellees, in their brief, concede that if the trial court lacked jurisdiction to
order the well plugged, it lacked jurisdiction to make a determination of whether or not
the well is in an inactive status. Having found that the trial court lacked jurisdiction to
order the well plugged, appellants’ fifth assignment of error is sustained.
Holmes County, Case No. 13CA014 13
{¶53} Accordingly, the judgment of the Holmes County Court of Common Pleas
is affirmed in part and reversed in part. Those parts of the trial court’s November 6,
2012 Decision and Judgment Entry ordering appellants to plug the well within four
months and finding the well to be inactive are hereby VACATED.
By: Baldwin, J.
Farmer, P.J. and
Wise, J. concur.
