[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.




                                      HON. CRAIG R. BALDWIN



                                      HON. WILLIAM B. HOFFMAN



                                      HON. PATRICIA A. DELANEY
