[Cite as St. Croix, Ltd. v. Damitz, 2012-Ohio-1325.]


STATE OF OHIO                      )                        IN THE COURT OF APPEALS
                                   )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                   )

ST. CROIX, LTD.                                             C.A. Nos.   25629, 25630

        Appellant

        v.                                                  APPEAL FROM JUDGMENT
                                                            ENTERED IN THE
KATHLEEN DAMITZ, et al.                                     COURT OF COMMON PLEAS
                                                            COUNTY OF SUMMIT, OHIO
        Appellees                                           CASE No.   CV 2008-06-4596

                                  DECISION AND JOURNAL ENTRY

Dated: March 28, 2012



        CARR, Judge.

        {¶1}     Appellant, St. Croix, Ltd., appeals the judgment of the Summit County Court of

Common Pleas. This Court reverses.

        {¶2}     This decision replaces this Court’s prior decision issued December 7, 2011,

pursuant to our journal entry issued March 21, 2012.

                                                       I.

        {¶3}     This case arises out of a dispute between a landowner and a gas and oil recovery

business. Appellee, Kathleen Damitz, owns real property which is the subject of an oil and gas

lease held by St. Croix. In 1991, when St. Croix had two wells on her property, Ms. Damitz sued

to enjoin St. Croix from placing any additional wells on her property. In 1992, the parties

entered into a settlement agreement in which St. Croix was permitted to drill a third well, but no

more. Soon thereafter, St. Croix drilled its third well. In 2008, St. Croix obtained a drilling

permit with the intent of utilizing one of the existing wellheads on Ms. Damitz’ property to
                                                2


conduct what it called “secondary recovery” operations, whereby it would plug back the existing

well to a certain depth and drill in another direction from the point of the plug back. St. Croix

believed that it was permitted to do so pursuant to the terms of the oil and gas lease and not

prohibited from doing so pursuant to the terms of the parties’ settlement agreement.

       {¶4}    On June 26, 2008, Ms. Damitz filed a complaint in case number CV 2008-06-

4596 against St. Croix, seeking declaratory judgment, a preliminary and permanent injunction,

and alleging a claim for breach of contract in regard to the parties’ 1992 settlement agreement.

Ms. Damitz also filed a motion for a preliminary injunction. St. Croix filed a motion to dismiss

the complaint pursuant to Civ.R. 12(B)(6). Ms. Damitz opposed the motion to dismiss. The trial

court never issued a formal ruling on the motion to dismiss. On September 4, 2008, the parties

filed a “stipulation,” agreeing that St. Croix would not commence any physical activities in

relation to its proposed directional drilling without thirty days’ written notice to Ms. Damitz.

The parties further agreed that Ms. Damitz’ motion for injunctive relief would be held in

abeyance pending St. Croix’ notice of intent to commence secondary operations at the existing

wellhead. On December 23, 2008, the trial court sua sponte ordered that case number CV 2008-

06-4596 be placed on the inactive docket.

       {¶5}    On October 2, 2009, St. Croix filed a complaint in case number CV 2009-10-7229

against Ms. Damitz and her husband David Sirlouis (collectively “Damitz”), alleging two claims

for declaratory judgment, one claim for breach of contract in regard to the oil and gas lease, and

one claim for fraud. Damitz filed an answer and six counterclaims which reiterated her claims in

her original complaint in addition to adding other claims.          Damitz later amended her

counterclaims, alleging two claims for declaratory judgment, one claim for preliminary and
                                                  3


permanent injunctive relief, one claim for breach of contract in regard to the parties’ 1992

settlement agreement, and two alternative claims for declaratory judgment.

       {¶6}     St. Croix moved to transfer case number CV 2009-10-7229 to the judge to whom

the 2008 case had been assigned. St. Croix erroneously asserted that case number CV 2008-06-

4596 had been voluntarily dismissed and that the 2009 case constituted a refiled action.

Recognizing that Damitz had not voluntarily dismissed her 2008 complaint, the trial court

instead ordered that case number CV 2009-10-7229 be consolidated with case number CV 2008-

06-4596 and that all further documents be filed under the 2008 case number. The trial court

terminated the 2009 case from the civil docket.

       {¶7}     The parties filed competing motions for summary judgment.            St. Croix

purportedly moved for summary judgment on all four of its claims and all six of Damitz’

counterclaims. St. Croix failed, however, to make any argument in regard to Damitz’ fourth

counterclaim. Damitz moved for summary judgment on all four counts in St. Croix’ complaint

but only counts one, two, and five of Damitz’ six counterclaims. No party moved for summary

judgment, or further acknowledged, the three claims in Ms. Damitz’ original complaint. On

September 15, 2010, the trial court issued an order ruling on the competing motions for summary

judgment and purporting to dispose of all pending claims.         The trial court included the

appropriate Civ.R. 54(B) language, noting that there was no reason for delay. St. Croix appealed

that order, filing notices of appeal in regard to both case numbers CV 2008-06-4596 and CV

2009-10-7229.
                                                 4


                                                 II.

                                  ASSIGNMENT OF ERROR

       “THE TRIAL COURT ERRED IN DENYING ST. CROIX’[] MOTION FOR
       SUMMARY JUDGMENT AND ERRED IN GRANTING DAMITZ’[] MOTION
       FOR SUMMARY JUDGMENT.”

       {¶8}    St. Croix argues that the trial court erred in granting summary judgment in favor

of Damitz on its claims and some of Damitz’ counterclaims. This Court agrees.

       {¶9}    St. Croix further argues that the trial court erred by denying its competing motion

for summary judgment. While the denial of a motion for summary judgment is generally not a

final, appealable order, we have accepted review of that issue on appeal where, as in this case,

the trial court considered the matter on cross-motions for summary judgment and entered a final

judgment against the appellant. Rootstown Excavating, Inc. v. Smith, 9th Dist. No. 25457, 2011-

Ohio-6415, at ¶ 20.

       {¶10} As a preliminary matter, this Court notes some issues of concern regarding the

management and disposition of this matter below. First, neither the parties nor the trial court

acknowledge the original complaint filed by Ms. Damitz. There is nothing in the record to

indicate that Ms. Damitz voluntarily dismissed her complaint or that the trial court entered

judgment on any of the three claims alleged therein. While Ms. Damitz may have intended to

abandon those claims in favor of the jointly filed counterclaims, there is nothing in the record to

reflect that. On the face of the record, Ms. Damitz’ original complaint remains pending, thus

necessitating disposition of the complaint in this matter.

       {¶11} Second, although the trial court made an effort to clearly delineate the claims

enunciated in Damitz’ amended counterclaims, it incorrectly identified the individual counts.

The trial court separated the first counterclaim into two distinct counts. It then misidentified the
                                                   5


second counterclaim as count three, the third counterclaim as count four, the fourth counterclaim

as count five, and the fifth and sixth alternative counterclaims together as count six.

       {¶12} Third, after granting summary judgment in favor of Damitz on St. Croix’ four

claims, it inexplicably dismissed those claims instead of rendering judgment on the claims in her

favor. Finally, the trial court purported to issue a ruling as to “all claims for relief in the matter.”

This Court has already noted that the trial court failed to address the three claims in Ms. Damitz’

pending original complaint.        More troubling, the trial court dismissed Damitz’ fourth

counterclaim (misidentified as count five), based on Damitz’ failure to demonstrate the family’s

entitlement to the requested declaration of rights. However, Damitz did not move for summary

judgment on the fourth counterclaim and, therefore, assumed no burden to present evidence on

the issue. In addition, although St. Croix asserted that it was moving for summary judgment on

all of Damitz’ counterclaims, it failed to address the fourth counterclaim in its motion. This

Court has held that “it is axiomatic that the trial court may not grant summary judgment in regard

to any claim, where a party has not moved for judgment in regard to that claim.” Rowe v.

Striker, 9th Dist. No. 07CA009296, 2008-Ohio-5928, at ¶7, quoting Urda v. Buckingham,

Doolittle & Burroughs, 9th Dist. No. 22547, 2005-Ohio-5949, at ¶13. It is, therefore, troubling

that the trial court disposed of count four of Damitz’ counterclaims.

       {¶13} This Court now addresses St. Croix’ assigned error that the trial court erred in its

rulings on the competing motions for summary judgment.

       {¶14} This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996).

       {¶15} Pursuant to Civ.R. 56(C), summary judgment is proper if:

       (1) No genuine issue as to any material fact remains to be litigated; (2) the
       moving party is entitled to judgment as a matter of law; and (3) it appears from
                                                 6


       the evidence that reasonable minds can come to but one conclusion, and viewing
       such evidence most strongly in favor of the party against whom the motion for
       summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).

       {¶16} To prevail on a motion for summary judgment, the party moving for summary

judgment must be able to point to evidentiary materials that show that there is no genuine issue

as to any material fact, and that the moving party is entitled to judgment as a matter of law.

Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). Once a moving party satisfies its burden of

supporting its motion for summary judgment with sufficient and acceptable evidence pursuant to

Civ.R. 56(C), Civ.R. 56(E) provides that the non-moving party may not rest upon the mere

allegations or denials of the moving party’s pleadings. Rather, the non-moving party has a

reciprocal burden of responding by setting forth specific facts, demonstrating that a “genuine

triable issue” exists to be litigated for trial. State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d

447, 449 (1996).

       {¶17} Civ.R. 56(C) limits the type of evidence which may be considered in support of a

motion for summary judgment.         Specifically, the trial court may consider “the pleadings,

depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence,

and written stipulations of fact, if any,” and expressly provides that “[n]o evidence or stipulation

may be considered except as stated in this rule.” Civ.R. 56(C).

       {¶18} In this case, the trial court based its ruling on its assertion that “[t]he parties have

stipulated to the facts in this matter[.]” The record contains no written stipulation of the parties

as contemplated by Civ.R. 56(C). Moreover, St. Croix has alleged on appeal, and Damitz has

not contested, that no stipulations of fact existed in the record. The trial court was not permitted

to consider evidence outside the scope of the types enumerated in Civ.R. 56(C). See Streb v.
                                                 7


Cinemark U.S.A., Inc., 10th Dist. No. 94APE04-540, 1995 WL 78063 (Feb. 21, 1995).

Furthermore, although St. Croix argued in its response to Damitz’ motion for summary judgment

that Damitz made various concessions as to the facts in their motion, Damitz replied that St.

Croix was incorrect in that assertion. This Court has recognized that “[w]hile reliance on

evidentiary material beyond that set forth in Civ.R. 56(C) has been allowed, it is only when the

opposing party has raised no objection.” Green v. B.F. Goodrich Co., 85 Ohio App.3d 223, 228

(9th Dist.1993). Here, Damitz objected to the trial court’s consideration of the facts as St. Croix

argued they had been conceded. Accordingly, because there was no written stipulation of facts

in the record as contemplated by Civ. R. 56(C), the trial court erred in basing its rulings on the

competing motions for summary judgment on the parties’ alleged stipulation.              St. Croix’

argument that the trial court erred by granting summary judgment in favor of Damitz is

accordingly well taken. Moreover, because the trial court based its ruling on a misunderstanding

of the evidence properly before it, the matter must be remanded to the lower court for

consideration of the competing motions for summary judgment with due regard for the evidence

properly before it, as we decline to engage in consideration of the motions in the first instance.

Accordingly, St. Croix’ assignment of error is sustained as it relates to the trial court’s grant of

summary judgment in favor of Damitz on her motion for summary judgment and we decline to

substantively address the assignment of error as it relates to the trial court’s denial of St. Croix’

competing motion.

                                                III.

       {¶19} St. Croix’ sole assignment of error is sustained in part, and we decline to address

it in part. The judgment of the Summit County Court of Common Pleas is reversed and the

cause remanded for further proceedings consistent with this opinion.
                                                 8


                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellees.




                                                     DONNA J. CARR
                                                     FOR THE COURT



BELFANCE, P. J.
MOORE, J.
CONCUR


APPEARANCES:

MARK H. LUDWIG, Attorney at Law, for Appellant.

TERRENCE L. SEEBERGER and NADA G. FADDOUL, Attorneys at Law, for Appellees.
