[Cite as Mauersberger v. Marietta Coal Co., 2014-Ohio-21.]
                            STATE OF OHIO, BELMONT COUNTY

                                 IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT


JOHN S. MAUERSBERGER, et al.                      )          CASE NO. 12 BE 41
                                                  )
        PLAINTIFFS-APPELLANTS                     )
                                                  )
VS.                                               )          OPINION
                                                  )
MARIETTA COAL COMPANY                             )
                                                  )
        DEFENDANT-APPELLEE                        )

CHARACTER OF PROCEEDINGS:                                    Civil Appeal from the Court of Common
                                                             Pleas of Belmont County, Ohio
                                                             Case No. 09 CV 453

JUDGMENT:                                                    Affirmed.

APPEARANCES:

For Plaintiffs-Appellants:                                   Atty. Eric Costine
                                                             136 West Main Street
                                                             St. Clairsville, Ohio 43950

                                                             Atty. Theodore L. Tsoras
                                                             1140 Main Street, 3rd Floor
                                                             Wheeling, WV 26003

For Defendant-Appellee:                                      Atty. Charles H. Bean
                                                             Thornburg & Bean
                                                             113 West Main Street
                                                             P.O. Box 96
                                                             St. Clairsville, Ohio 43950


JUDGES:

Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
                                                             Dated: January 6, 2014
[Cite as Mauersberger v. Marietta Coal Co., 2014-Ohio-21.]
WAITE, J.


        {¶1}    This case arises from a summary judgment ruling in the Belmont

County Court of Common Pleas in favor of Appellee Marietta Coal Company

(“Marietta Coal”), and overruling the cross-motion for summary judgment of

Appellants John S. and Susan Mauersberger (“the Mauersbergers”).                     The

Mauersbergers leased surface and mineral rights of about one hundred and eighty

acres of land to Marietta Coal.                 In return, Marietta Coal allowed John S.

Mauersberger to graze cattle on an additional three hundred acres of land owned by

the coal company. The Mauersbergers sued Marietta Coal for breach of contract

after Marietta Coal terminated the lease and demanded that they remove their cattle

from their land. Both parties filed motions for summary judgment.

        {¶2}    The court granted summary judgment to Marietta Coal, and this timely

appeal followed. On appeal, the Mauersbergers claim that there are still issues of

material fact as to whether they were properly notified that Marietta Coal was

invoking a contractual right to terminate the lease, and whether the Mauersbergers

had sent proper written notice of breach as set forth in the lease agreement.

        {¶3}    As part of its motion for summary judgment, Marietta Coal filed three

affidavits which established that Marietta Coal had alerted the Mauersbergers of its

intent to sell the land and terminate the grazing rights, and that all profitable coal had

been removed. The lease had a provision that allowed Marietta Coal to terminate the

lease after all profitable coal was removed, upon proper notice to Appellants. The

Mauersbergers failed to file any evidence at the trial court level. They now attempt to

enter an affidavit for the first time on appeal to rebut Marietta Coal’s evidence. It is
                                                                                    -2-

axiomatic that new evidence cannot be submitted on appeal.          As there was no

genuine issue of material fact based on the evidence that was properly submitted in

the trial court, the court properly granted summary judgment to Marietta Coal. The

judgment of the trial court is affirmed.

                                       Background

       {¶4}   On February 19, 1999, the Mauersbergers signed a five-year lease

granting Marietta Coal the mineral and surface rights for 180 acres of land situated in

Union Township, Belmont County, in exchange for royalties derived from the coal

mined from the land. In addition, John S. Mauersberger was given the right to graze

cattle, free of charge, on 300 acres of land under Marietta Coal’s control so long as

the premises was owned by Marietta Coal and his grazing did not disturb mining

operations. This additional grazing land was separate from the 180 acres owned by

the Mauersbergers and leased to Marietta Coal.

       {¶5}   In April of 2001, all profitable coal had been mined from the above-

mentioned lands and Marietta Coal ceased its mining operations. Paragraph 3 of the

lease allowed Marietta Coal to terminate the lease after all economically profitable

coal was removed. Pursuant to this provision, Marietta Coal terminated the lease

agreement with the Mauersbergers. Thereafter, Marietta Coal sold land under its

control to K. & S. Shugert Farms Family Limited Partnership. This land included the

grazing acres being used by Appellants.        This sale was finalized on or about

December 30, 2002. Because of this pending sale, Marietta Coal sent a written

statement to John S. Mauersberger at some point prior to December 19, 2002,

demanding that he remove all cattle and fences from the lands which had been sold,
                                                                                   -3-

as the land was no longer to be under the control of Marietta Coal and could no

longer be subject to the lease.     In response, on December 19, 2002, John S.

Mauersberger’s attorney sent a letter advising Marietta Coal that Mauersberger

believed that he still had rights to use the 300 acres of land despite its sale by

Marietta Coal.

      {¶6}   The Mauersbergers originally filed their breach of contract action on

March 20, 2006, and Marietta Coal filed its motion for summary judgment on October

15, 2008. Thereafter, the Mauersbergers dismissed the suit pursuant to Civ.R 41(A).

The Mauersbergers refiled this action on October 13, 2009. Marietta Coal timely filed

its answer and on October 7, 2011, filed a motion for summary judgment and

evidentiary attachments.    On November 7, 2011, the Mauersbergers filed their

response in opposition to summary judgment, without including any affidavits or other

rebuttal evidence. On February 9, 2012, the Mauersbergers filed a cross-motion for

summary judgment, again without attaching any evidence, relying solely on their

pleadings.

      {¶7}   The trial court granted Marietta Coal’s motion for summary judgment

and overruled the cross-motion for summary judgment. The Mauersbergers then

filed this timely appeal. The Mauersbergers raise one assignment of error.

                        Law Governing Summary Judgment

      {¶8}   “A clear and unambiguous contract can be enforced as a matter of law

through summary judgment, and its interpretation is thereafter reviewed de novo.”

J.G. Wentworth L.L.C. v. Christian, 7th Dist. No. 07 MA 113, 2008-Ohio-3089, ¶30,

citing Inland Refuse Transfer Co. v. Browning-Ferris Industries of Ohio, Inc., 15 Ohio
                                                                                     -4-

St.3d 321, 322, 474 N.E.2d 271, 272 (1984). In reviewing this case de novo, we

apply the same standards as the trial court set forth in Civ.R. 56(C). Brown v. Scioto

Bd. of Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993).

“[B]efore summary judgment may be granted, it must be determined that: (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 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, 364 N.E.2d 267 (1977); Horton v. Harwick Chem. Corp., 73

Ohio St.3d 679, 653 N.E.2d 1196 (1975), paragraph three of the syllabus.

       {¶9}   The initial burden of demonstrating that there are no genuine issues of

material fact concerning an essential element falls to the movant. Dresher v. Burt, 75

Ohio St.3d 280, 292-293, 662 N.E.2d 264, 273 (1996).          To accomplish this, the

movant must cite to evidentiary materials such as “the pleading, depositions, answers

to interrogatories, written admissions, affidavits, transcripts of evidence, and written

stipulations of fact, if any.” Civ.R. 56(C); Id. The movant must also show that the

moving party is entitled to judgment as a matter of law. Id. “However, if the moving

party has satisfied its initial burden, the nonmoving party then has a reciprocal

burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a

genuine issue for trial and, if the nonmovant does not so respond, summary

judgment, if appropriate, shall be entered against the nonmoving party.” Dresher at

293.
                                                                                     -5-

                             ASSIGNMENT OF ERROR

      THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

      PLAINTIFFS AS IT MISCONSTRUED THE FACTS OF THE CASE BY

      GRANTING THE DEFENDANT SUMMARY JUDGMENT; BY FAILING

      TO RECOGNIZE AND ADDRESS THAT DEFENDANT NEVER

      PROVIDED NOTICE TO PLAINTIFFS; AND BY FAILING TO

      ACKNOWLEDGE THAT THE PROPER NOTICE WAS PROVIDED BY

      THE PLAINTIFFS.

      {¶10} Although there is only one assignment of error, the Mauersbergers

raise four separate issues on appeal. First, they argue that Marietta Coal did not

provide proper notice to them of the termination of the lease and subsequent sale of

the land. Second, they argue that Marietta Coal did not remove all economically

profitable coal and could not terminate the lease until that precondition was satisfied.

Third, they argue that even if the lease was terminated, they had separate grazing

rights over Marietta Coal’s land. And fourth, they argue that they provided proper

notice that they thought Marietta Coal was breaching the lease, and that this notice

should have been sufficient to preserve their rights under the lease.

      {¶11} On the first issue, the Mauersbergers argue that the lease contained a

notice provision, and that it could not be terminated without proper notice. This is

found in paragraph 3 of the lease, which states:

      * * * if general market conditions are such that the coal on the herein

      described premises is not marketable to the extent that it cannot be
                                                                                       -6-

       economically and profitably mined and removed by the Lessee, the

       Lessee shall have the right to terminate this Agreement by giving

       Lessors thirty (30) days notice in writing of said termination.

       {¶12} The Mauersbergers’ memorandum in opposition to Marietta Coal’s

motion for summary judgment acknowledges that “[s]ome time prior to December 19,

2002, Marietta Coal Co. demanded the plaintiffs remove all fencing and cattle from

the hereinbefore described land.” (11/7/11 Response in Opposition to Defendant’s

Motion for Summary Judgment, p. 3.) The Mauersbergers responded to the demand

by having their attorney send a letter to Marietta Coal on December 19, 2002,

asserting their continued right to use the property.       The letter obviously reflects

knowledge on the Mauersbergers’ part that Marietta Coal informed them their rights

had terminated. This, in turn, caused them to protest that their rights had not been

terminated. It appears that Appellants are not arguing lack of notice of termination,

but that the form of the notice did not comply with the lease.

       {¶13} Although there is no document in the record that can be construed as

express written notice of the termination of the lease, Marietta Coal filed the affidavit

of John Nicolozakes, the president of the company, which states: “Marietta Coal has

performed all of its lease obligations pursuant to Marietta Coal’s lease with John and

Susan Mauersberger.” (Nicolozakes Aff., ¶4.) This statement is taken as true, since

there is no evidence contesting it. “The affidavits filed by appellees in support of their

motion for summary judgment were uncontested at the trial court level therefore,

these uncontested facts do not create any genuine issue of material fact.” Carter v.

Licking Cty. Bd. of Commrs., 5th Dist. No. 99CA43, 1999 WL 1071709, at *3 (Nov. 4,
                                                                                    -7-

1999).     “Although the trial court is not permitted to determine the credibility of

competing affidavits, if a case-making fact in the movant’s affidavit is uncontested,

then the court can take that fact as true and grant summary judgment accordingly.”

Prendergast v. Snoeberger, 154 Ohio App.3d 162, 2003-Ohio-4742, 796 N.E.2d 588,

¶15 (7th Dist.).    Thus, we can presume that the notice provisions were either

performed or waived by the parties.

         {¶14} A party against whom summary judgment is sought “may not rest upon

the mere allegations or denials of the party’s pleadings, but the party’s response, by

affidavit or as otherwise provided in this rule, must set forth specific facts showing

that there is a genuine issue for trial.” Civ.R. 56(E). Here, the Mauersbergers offered

no evidence at the trial court level as to their arguments. “If the party does not so

respond, summary judgment, if appropriate, shall be entered against the party.”

Civ.R. 56(E).      Since no evidence was presented pursuant to Civ.R. 56, the

Mauersbergers failed to bear the burden imposed upon them by Dresher, supra.

Therefore, summary judgment was properly granted to Marietta Coal on this issue.

         {¶15} Appellants attempt to submit on appeal the affidavit of John S.

Mauersberger. This affidavit contests the affidavits submitted by Marietta Coal. In

Mauersberger’s affidavit, he asserts that he was never notified of the termination of

the lease due to all economically minable coal having been removed. However,

when an affidavit does not appear in the trial court record, it is inadmissible on

appeal. “A reviewing court cannot add matter to the record before it, which was not a

part of the trial court’s proceedings, and then decide the appeal on the basis of the

new matter.” Palmer v. Palmer, 7th Dist. No. 12 BE 12, 2013-Ohio-2875, ¶16, citing
                                                                                       -8-

State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978), at paragraph one of

syllabus.

       {¶16} Appellants’ second argument is that Marietta Coal was in breach of the

lease by terminating the lease before mining all profitable coal from the land. It is

established by the uncontroverted affidavit of Tillio Petrozzi, Marietta Coal’s coal

mining expert, that all coal that was economically feasible to mine was removed from

the premises: "[b]ased upon a reasonable degree of professional certainty, between

February 19, 1999 and April, 2001, all coal that was economically feasible to mine

was removed * * * [r]emaining coal would not yield any profit * * * if it were to be

removed from these properties.” (Petrozzi Aff., ¶5.) Again, Appellants offered no

evidence to the contrary. Thus, it is also uncontested that there was no profitable

coal to remove from the land, and this was a valid reason for terminating the lease.

       {¶17} As an additional note, Appellants failed to raise the issue as to whether

all profitable coal had been mined to the trial court. “It is well-settled that issues not

raised in the trial court may not be raised for the first time on appeal.” State v. Abney,

12th Dist. No. CA2004-02-018, 2005-Ohio-146, ¶17, citing State v. Awan, 22 Ohio

St.3d 120, 122 (1986); State v. Childs, 14 Ohio St.2d 56 (1968), paragraph three of

the syllabus. Since the issue was not raised below and there is no evidence in

support of record, we will not consider it for the first time, here.

       {¶18} Appellants’ third argument is that they retained the right to use the land

even after it had been sold. There is nothing in the lease giving the Mauersbergers

this right. As stated in the uncontroverted affidavit of Paul Kosky (Marietta Coal’s

land agent who negotiated the lease with the Mauersbergers):
                                                                                      -9-

        That the “under control language” in said Lease was negotiated to limit

        and to be certain that the same was a revocable license and that if

        Marietta Coal did not control said premises that said revocable license

        would be automatically revoked. Said pasturing of cattle was merely an

        accommodation to Plaintiffs if the same did not interfere with the

        mining, reclamation or sale of said premises by Marietta Coal

        Company.

(Kosky Aff., ¶4.)

        {¶19} Assuming once again that Marietta Coal's evidence as contained in its

uncontested affidavits is true, the record reflects that the lease's silence as to any

grazing right running with the land after Marietta Coal sold the premises was

intentional. The Mauersbergers possessed only a revocable license to use the land

for grazing while the lease was in effect or thereafter, if Mr. Mauersberger “chooses

to pay a yearly fee agreed upon between himself and Marietta Coal, based on the

total acres of usable pasture.” (2/19/99 Lease, ¶16.) This license was revoked after

the land was sold.

        {¶20} As to Appellants’ fourth issue, they argue that the letter from their

attorney served to properly notify Marietta Coal that it was in default as per the lease.

Since it is clear from the record that Marietta Coal was not in breach and properly

terminated the lease, any further issues regarding Appellants’ notice of breach are

moot.    None of Appellants’ four arguments on appeal have merit, and their sole

assignment of error is overruled.

                                      Conclusion
                                                                                 -10-

      {¶21} The trial court did not err in granting Appellee summary judgment.

There is no proof on the record that raise any genuine issues of material fact.

Therefore, it must be accepted that Marietta Coal properly notified Appellants that it

was terminating the lease; that all profitable coal had been mined from the premises

by April of 2001; and that it properly undertook to sell the land used by John S.

Mauersberger to graze his cattle. Since Marietta Coal was not in breach of the lease,

any issues about whether Appellants properly delivered notice of the breach are

moot. Because we overrule all of Appellants’ arguments on appeal, we hereby affirm

the judgment of the trial court granting summary judgment to Marietta Coal and

overruled Appellants’ motion for summary judgment.


Vukovich, J., concurs.

DeGenaro, P.J., concurs.
