[Cite as Siltstone Servs., L.L.C. v. Guernsey Cty. Community Dev. Corp., 2020-Ohio-3877.]


                                       COURT OF APPEALS
                                   GUERNSEY COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 SILTSTONE SERVICES, LLC                                JUDGES:
                                                        Hon. William B. Hoffman, P.J.
         Plaintiff-Appellee                             Hon. John W. Wise, J.
                                                        Hon. Earle E. Wise, Jr., J.
 -vs-
                                                        Case No. 19CA000047
 THE GUERNSEY COUNTY
 COMMUNITY DEVELOPMENT
 CORPORATION, et al.,

        Defendants-Appellees                            O P I N IO N

 And

 OHIO PUBLIC WORKS COMMISSION

        Defendant-Appellant

 And

 DEVON ENERGY PRODUCTION
 COMPANY, LP

        Defendant-Appellee-
        Cross-Appellant




 CHARACTER OF PROCEEDINGS:                              Appeal from the Guernsey County Court
                                                        of Common Pleas, Case No.
                                                        17CV000611

 JUDGMENT:                                              Affirmed in part; Reversed and remanded
                                                        in part; Final Judgment entered in part

 DATE OF JUDGMENT ENTRY:                                July 27, 2020
Guernsey County, Case No. 19CA00047                                                 2


APPEARANCES:


For Plaintiff-Appellee Siltstone           For Defendant-Appellee Guernsey
Services, LLC                              County Community Development Corp.

ANDREW LYCANS                              MARIBETH MELUCH
Critchfield, Critchfield & Johnston, LTD   Isaac Wiles Burkholder & Teetor, LLC
225 North Market Street                    Two Miranova Place – Ste. # 700
P.O. Box 599                               Columbus, Ohio 43215
Wooster, Ohio 44691
                                           For Defendant-Appellee Patriot Land
MANMEET S. WALIA                           Company, LLC
Siltstone Services, LLC
1801 Smith Street – Ste. #2000             RICHARD V. ZURZ, JR.
Houston, TX 77002                          Slater & Zurz, LLP
                                           One Cascade Plaza – Ste. #2210
                                           Akron, Ohio 44308

For Defendant-Appellees Synergy            For Defendant-Appellee Gulfport Energy
Land Company, LLC and Whispering           Corporation
Pines Land Company, LLC
                                           DANIEL C. GIBSON
CRAIG G. PELINI                            MATTHEW W. WARNOCK
PAUL B. RICARD                             AARON M. BRUGGEMAN
Pelini, Campbell & Williams, LLC           CHRISTINE RIDEOUT SCHIRRA
8040 Cleveland Ave., N.W. – Ste. #400      Bricker & Eckler, LLP
North Canton, Ohio 44720                   110 South Third Street
                                           Columbus, Ohio 43215

                                           ZACHARY M. SIMPSON
                                           Gulfport Energy Corporation
                                           3001 Quail Springs Parkway
                                           Oklahoma City, OK 73134
Guernsey County, Case No. 19CA00047                                            3


For Defendant-Appellant Ohio Public   For Defendant-Appellee/Cross-Appellant
Works Commission                      Devon Energy Production Company, LP

DAVE YOST                             TIMOTHY B. McGRANOR
Attorney General of Ohio              ELIZABETH S. ALEXANDER
                                      Vorys, Sater, Seymour and Pease, LLP
LIDIA MOWAD                           52 East Gay Street
JAMES PATTERSON                       Columbus, Ohio 43215
RACHEL HUSTON
CHRISTIE LIMBERT
CORY GOE
MICHELLE PFEFFERLE
JOSHUA NAGY
Assistant Attorneys General
Executive Agencies Section
30 E. Broad Street – 26th Floor
Columbus, Ohio 43215
Guernsey County, Case No. 19CA00047                                                                  4


Hoffman, P.J.
          {¶1}    Defendant-Appellant Ohio Public Works Commission (“OPWC”) appeals

the judgment entered by the Guernsey County Common Pleas Court granting Plaintiff-

Appellee's Siltstone Resources, LLC (“Siltstone”); Defendant-Appellee's Guernsey

County Community Development Corporation (“CDC”); Cross-Claim Defendants-

Appellees'       Gulfport    Energy      Corporation     (“Gulfport”),    Synergy      Land   Company

(“Synergy”),Whispering Pine, LLC (“Whispering Pine”), Patriot Land Company, LLC

(“Patriot”),     Devon      Energy     Production,     LP    (“Devon”),     and       Guernsey   County

Commissioners (“Guernsey County”)1 motions for summary judgment and/or judgment

on the pleadings, and denying Appellant OPWC's motion for partial summary judgment.

                                 STATEMENT OF THE FACTS AND CASE

          {¶2}    This case concerns the Clean Ohio Conservation Program and

approximately 60 acres of property in Guernsey County, Ohio.

          {¶3}    In 2000, Ohio voters approved a constitutional amendment to create a tax-

exempt bond fund to be used for environmental conservation and revitalization purposes.

Ohio Constitution, Article VIII, Section 2o(A). The amendment permitted the General

Assembly to enact laws in accordance with the amendment. Ohio Constitution, Article

VIII, Section 2o(B). As a result, the Clean Ohio Fund Green Space Conservation Program

was created, and OPWC was tasked with administering the program.

          {¶4}    In 2006, CDC applied for a grant of $894,500 from the Clean Ohio Fund for

its Leatherwood Creek Riparian Project. CDC represented to OPWC it would purchase

land along the Leatherwood Creek “to allow the riparian corridor to be protected from



1   The Guernsey County Commissioners have not filed a brief in the instant action.
Guernsey County, Case No. 19CA00047                                                     5


encroachment by development and allow the natural beauty of [the] valley to be accessed

by the public.” CDC represented “the primary emphasis of this project is the preservation

and restoration of water quality, natural stream channels, functioning floodplains,

wetlands, streamside forests, and other natural features that contribute to the quality of

life in Guernsey and Belmont County.” The project included land in both Belmont and

Guernsey Counties.

      {¶5}   OPWC approved the grant and a project agreement was entered into

between OPWC and CDC in 2006. As part of the agreement, deed restrictions were

required to be recorded with the deeds for any land purchased by CDC with grant money

from OPWC.

      {¶6}   In February, 2008, CDC purchased approximately 60 acres in Guernsey

County from George and Autumn Thompson, using grant funds received from OPWC.

The deed contained the following restrictions:



             1. Use and Development Restrictions. Declarant hereby agrees, for

      itself and its successors and assigns as owners of the Property, which

      Property shall be subject to the following: This property will not be

      developed in any manner that conflicts with the use of the Premises as a

      green space park area that protects the historical significance of this

      particular parcel. Only current structures will be maintained and no new

      structures will be built on the premises.

             2. Perpetual Restrictions. The restrictions set forth in this deed shall

      be perpetual and shall run with the land for the benefit of, and shall be
Guernsey County, Case No. 19CA00047                                                      6


     enforceable by, Ohio Public Works Commission (OPWC). This deed and

     the covenants and restrictions set forth herein shall not be amended,

     released, extinguished or otherwise modified without the prior written

     consent of OPWC, which consent may be withheld in its sole and absolute

     discretion.

            3. Enforcement. If Grantee, or its successors or assigns as owner of

     the Property, should fail to observe the covenants and restrictions set forth

     herein, the Grantee or it is successors or assigns, as the case may be, shall

     pay to OPWC upon demand, as liquidated damages, an amount equal to

     the rate of (a) two hundred percent (200%) of the amount of the Grant

     received by Grantee, together with interest accruing at the rate of six

     percent (6%) per annum from the date of Grantee's receipt of the Grant, or

     (b) two hundred percent (200%) of the fair market value of the Property as

     of the date or demand by OPWC. Grantee acknowledges that such sum is

     not intended as, and shall not be deemed, a penalty, but is intended to

     compensate for damages suffered in the event a breach or violation of the

     covenants and restrictions set forth herein, the determination of which is not

     readily ascertainable.

            OPWC shall have the right to enforce by any proceedings at law or

     in equity, all restrictions, conditions, and covenants set forth herein. Failures

     by OPWC to proceed with such enforcement shall in no event be deemed

     a waiver of the right to enforce at a later date the original violation or

     subsequent violation.
Guernsey County, Case No. 19CA00047                                                       7


              4. Restrictions on transfer of the Property. Grantee acknowledges

       that the Grant is specific to Grantee and that OPWC's approval of Grantee's

       application for the Grant was made in reliance on Grantee's continued

       ownership and control of the Property. Accordingly, Grantee shall not

       voluntarily or involuntarily sell, assign, transfer, lease, exchange, convey or

       otherwise encumber the Property without the prior written consent of

       OPWC, which consent may be withheld in its sole and absolute discretion.



       {¶7}   2008 Deed from George and Autumn Thompson to CDC.

       {¶8}   In March, 2011, CDC entered into an oil and gas lease with Patriot. Patriot

assigned the lease to Gulfport in October of 2012, but retained a royalty interest. Patriot

subsequently assigned a portion of its royalty interest to Synergy and Whispering Pines.

The lease included rights of ingress and egress to establish, conduct, and/or maintain

production operations, and did not prohibit disturbing the surface of the land. CDC did

not seek written consent of OPWC before entering this agreement, nor did Patriot receive

consent to transfer its interest in the property.

       {¶9}   In August, 2012, CDC entered into a Water and Surface Use Agreement

with Devon. Pursuant to the agreement, Devon was given the right to withdraw water

from the ponds on the land incident to Devon’s oil and gas activities. Devon could enter

the land; draw water from the ponds in such volumes as Devon required; place and

maintain both surface and subsurface pipelines, equipment, or facilities necessary or

convenient for Devon’s operations or for drawing, transporting, or storing water; distribute

on the land earth, rock, or other materials excavated in laying pipelines or installing,
Guernsey County, Case No. 19CA00047                                                         8


repairing, or removing other facilities on the land; and cut trees and other vegetation.

CDC agreed not to allow third parties to use the ponds for swimming or other recreational

purposes while Devon conducted operations on or near the pond.               Pursuant to an

amendment to the agreement between CDC and Devon, Devon was permitted to pump

non-potable replenishment water into the pond, and CDC agreed the pond would not be

used as a source of drinking water or fish for human consumption.

       {¶10} Devon exercised its rights under the agreement in 2013. After installing

water pipelines and a portable water pump, Devon withdrew 71,332 barrels of water from

ponds on the property and from a creek, paying CDC a total of $14,726.40 for the water.

CDC did not seek written consent of OPWC before entering this agreement with Devon.

       {¶11} In October of 2012, CDC transferred two acres of surface rights to the

property to Guernsey County for construction of a trailhead, without obtaining the consent

of the OPWC for the sale.

       {¶12} On April 24, 2013, the Executive Director of CDC, Daniel Speedy, signed a

right of way letter agreement giving Siltstone the right to use a private road on the property

to access Siltstone’s adjoining property. In exchange for use of the right of way for its

commercial oil and gas activities, Siltstone agreed to maintain the road. Eventually, CDC

erected a gate on the property preventing Siltstone from using the right of way, which

action gave rise to the instant lawsuit.

       {¶13} Siltstone filed the instant action against CDC on November 1, 2017, seeking

a declaration the right of way agreement between the parties remained in effect and an

order directing CDC to specifically perform under the agreement by executing a
Guernsey County, Case No. 19CA00047                                                         9


recordable right of way. Siltstone later amended the complaint, adding a cause of action

seeking money damages for breach of contract.

       {¶14} OPWC intervened in the action on July 2, 2018. OPWC filed a counterclaim

against Siltstone and a cross-claim against CDC, alleging the right of way agreement and

the other interests in the property conveyed by CDC violated the deed restrictions. OPWC

obtained leave to join Gulfport, Patriot, Synergy, Whispering Pines, Devon, and Guernsey

County to the action, and filed cross-claims against these new party defendants. OPWC

sought both injunctive relief and monetary damages pursuant to the liquidated damages

clause in the deed restrictions. Devon filed a cross claim against CDC, alleging pursuant

to its water and surface use agreement with CDC, it had a right of defense and

indemnification from CDC. CDC cross-claimed against OPWC, seeking a declaration

OPWC is limited to money damages and equitable relief is not available, the transfer

restriction in the deed is void, the use restriction is limited to the surface of the property

only, the use restriction only bars activity inconsistent with use of the property as green

space, and the liquidated damages provision is void as a penalty.

       {¶15} All parties filed dispositive motions.      OPWC filed a motion for partial

summary judgment on all issues except liquidated damages. CDC filed motions for

summary judgment as to Siltstone’s claims, OPWC’s claims, and Devon’s claim. Siltstone

filed a motion for summary judgment. Devon filed a motion for summary judgment as to

OPWC’s cross-claims, and a motion for partial summary judgment on its cross-claim

against CDC. Patriot filed a motion for summary judgment. Gulfport, Synergy, and

Whispering Pine filed motions for judgment on the pleadings pursuant to Civ. R. 12(C).
Guernsey County, Case No. 19CA00047                                                                   10


          {¶16} The trial court found Speedy’s actions in signing the right of way agreement

were ultra vires and not binding on CDC.2 The court found OPWC was not entitled to

injunctive nor declarative relief pursuant to statute.

          {¶17} The trial court concluded the use restriction in the deed applied only to the

surface of the land. The court found no evidence the surface was used by Patriot,

Gulfport, Synergy or Whispering Pine, and therefore the oil and gas leases did not violate

the use restriction in the deed.

          {¶18} The trial court found OPWC had not established actual damages for the

withdrawal of water from the pond by Devon, and the liquidated damages clause in the

Thompson deed was disproportionate to the damage caused by Devon to the ponds, and

therefore void as a penalty.

          {¶19} The trial court concluded the transfer to Guernsey County did not violate the

use restriction, as the construction of a trailhead was consistent with green space use.

The trial court found no structures have been erected, and the transfer augments the

green space objectives.

          {¶20} Finally, the trial court concluded the transfer restriction is void as a matter

of law, as it requires perpetual ownership rather than ownership or long-term control.

          {¶21} The court accordingly granted CDC’s motion for summary judgment as to

Siltstone’s complaint, and denied Siltstone’s summary judgment motion as to CDC. The

court granted CDC’s motion for summary judgment as to OPWC’s cross claim against

CDC, and granted CDC’s motion for summary judgment on its cross-claim against

OPWC. The court granted CDC’s motion for summary judgment on Devon’s cross-claim



2   Siltstone’s appeal from this judgment is the subject of the related appeal, Case No. 19CA00049.
Guernsey County, Case No. 19CA00047                                                 11


against CDC, and denied Devon’s motion for summary judgment on said cross-claim.

The court granted the motion for summary judgment filed by Patriot, and the motions for

judgment on the pleadings filed by Gulfport, Synergy and Whispering Pine. The court

denied Siltstone’s motion for summary judgment on OPWC’s counterclaim because the

right of way agreement was found to be void as ultra vires, and denied OPWC’s motion

for partial summary judgment.

         {¶22} As to Devon’s cross-claim against the CDC, the trial court found the

indemnification clause relates to damages to the ponds or personal injury. The court

found the cross-claims of OPWC against Devon did not relate to either damage to the

ponds or personal injury, and therefore granted summary judgment to CDC on the cross-

claim.

         {¶23} It is from the October 25, 2019 judgment of the Guernsey County Common

Pleas Court OPWC prosecutes this appeal, assigning as error:



               I. THE TRIAL COURT ERRED IN DENYING THE COMMISSION’S

         MOTION FOR PARTIAL SUMMARY JUDGMENT AND IN GRANTING

         APPELLEES’ VARIOUS MOTIONS BECAUSE THE COURT SHOULD

         HAVE APPLIED THE PLAIN LANGUAGE OF THE DEED RESTRICTIONS

         TO FIND THAT APPELLEES BREACHED THE DEED RESTRICTIONS.

               II. THE TRIAL COURT ERRED IN DENYING THE COMMISSION’S

         MOTION FOR PARTIAL SUMMARY JUDGMENT AND IN GRANTING

         APPELLEES’    VARIOUS     MOTIONS     FOR SUMMARY         JUDGMENT
Guernsey County, Case No. 19CA00047                                                    12


        BECAUSE THE DEED RESTRICTIONS ARE VALID AND ARE

        ENFORCEABLE THROUGH DECLARATORY AND INJUNCTIVE RELIEF.

              III. THE TRIAL COURT ERRED IN DENYING THE COMMISSION’S

        MOTION FOR PARTIAL SUMMARY JUDGMENT AND IN GRANTING

        APPELLEES’     VARIOUS      MOTIONS     FOR SUMMARY           JUDGMENT

        BECAUSE THE COMMISSION IS ENTITLED TO MONEY DAMAGES.



        {¶24} Devon assigns a single error to the October 25, 2019 judgment of the court:



              THE TRIAL COURT ERRED IN DENYING DEVON’S MOTION FOR

        PARTIAL SUMMARY JUDGMENT AND GRANTING THE CDC’S MOTION

        FOR SUMMARY JUDGMENT ON DEVON’S CROSS-CLAIMS AGAINST

        THE CDC.



                                               I.

        {¶25} OPWC argues the trial court erred in granting the various dispositive

motions of the Appellees herein and in denying its motion for summary judgment

regarding CDC’s violations of the use, transfer and perpetual restrictions in the Thompson

deed.

        {¶26} Summary judgment proceedings present the appellate court with the unique

opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v.

The Wedding Party, Inc., 30 Ohio St.3d 35, 36 (1987). As such, we must refer to Civ. R.

56(C) which provides in pertinent part:
Guernsey County, Case No. 19CA00047                                                           13


              Summary Judgment shall be rendered forthwith if the pleadings,

       depositions, answers to interrogatories, written admissions, affidavits,

       transcripts of evidence, and written stipulations of fact, if any, timely filed in

       the action, 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. No evidence

       or stipulation may be considered except as stated in this rule. A summary

       judgment shall not be rendered unless it appears from the evidence or

       stipulation, and only from the evidence or stipulation, that reasonable minds

       can come to but one conclusion and that conclusion is adverse to the party

       against whom the motion for summary judgment is made, that party being

       entitled to have the evidence or stipulation construed most strongly in the

       party’s favor.



       {¶27} Pursuant to the above rule, a trial court may not enter summary judgment if

it appears a material fact is genuinely disputed. The party moving for summary judgment

bears the initial burden of informing the trial court of the basis for its motion and identifying

those portions of the record demonstrating the absence of a genuine issue of material

fact. The moving party may not make a conclusory assertion the non-moving party has

no evidence to prove its case. The moving party must specifically point to some evidence

which demonstrates the moving party cannot support its claim. If the moving party

satisfies this requirement, the burden shifts to the non-moving party to set forth specific

facts demonstrating there is a genuine issue of material fact for trial. Vahila v. Hall, 77
Guernsey County, Case No. 19CA00047                                                      14


Ohio St.3d 421, 429, 1997-Ohio-259, citing Dresher v. Burt, 75 Ohio St.3d 280, 1996-

Ohio-107.

       {¶28} A motion for a judgment on the pleadings, pursuant to Civ. R. 12(C),

presents only questions of law. Peterson v. Teodosio, 34 Ohio St.2d 161, 165–166, 297

N.E.2d 113 (1973). The determination of a motion under Civ. R. 12(C) is restricted solely

to the allegations in the pleadings and the nonmoving party is entitled to have all material

allegations in the complaint, with all reasonable inferences to be drawn therefrom,

construed in its favor. Id. Evidence in any form cannot be considered. Conant v. Johnson,

1 Ohio App.2d 133, 135, 204 N.E.2d 100 (1964). In considering such a motion, one must

look only to the face of the complaint. Nelson v. Pleasant, 73 Ohio App.3d 479, 597

N.E.2d 1137 (1991).

       {¶29} OPWC first argues the court erred in granting CDC’s motion for summary

judgment and denying its own motion for summary judgment on its claim CDC’s transfers

of interest in the property to Patriot, Devon, and Siltstone violated the use restriction in

the Thompson deed.

       {¶30} The use restriction in the deed provides:



              1. Use and Development Restrictions. Declarant hereby agrees, for

       itself and its successors and assigns as owners of the Property, which

       Property shall be subject to the following: This property will not be

       developed in any manner that conflicts with the use of the Premises as a

       green space park area that protects the historical significance of this
Guernsey County, Case No. 19CA00047                                                       15


       particular parcel. Only current structures will be maintained and no new

       structures will be built on the premises.



       {¶31} The trial court found the use restriction applied only to the surface of the

property, and not to the subsurface. The trial court found the Patriot lease has been

released, and there was no evidence presented concerning any surface use of the

property under the lease. The trial court found the OPWC did not present evidence the

withdrawal of “the de minimus [sic] amount of water for a limited period of time” by Devon

conflicted with the use of the property as a green space.           The trial court found the

Siltstone right of way was invalid on other grounds.

       {¶32} In interpreting the identical use restriction language set forth in the

Thompson deed, the Court of Appeals for the Seventh District, in a case involving the

Leatherwood Creek project as it relates to land located in Belmont County and involving

many of the same parties as the instant case, concluded the term “green space park area”

in this use restriction applied only to the surface of the land:



              Since there is no statutory or deed definition for “green space park

       area,” rules of construction indicate we use the common definition. A park

       is an area of land set aside for public use.

       https://www.thefreedictionary.com/park. Green space is “a natural area in

       or around a development, intended to provide buffer, noise control,

       recreational use, and/or wildlife refuge, all in order to enhance the quality

       of life in and around the development.” https://financial-
Guernsey County, Case No. 19CA00047                                                     16


      dictionary.thefreedictionary.com/green+space. Green space is often

      intentionally provided in the urban setting; it is nature space in the city.

      However, green space may occur in the rural setting also. Commonly, in

      the rural settings it is preserving areas of nature from development or

      reclaiming areas of nature that were used for industry. In northeast Ohio,

      unused railways are converted to trails and land stripped from mining is

      reclaimed. Both occurred on the property in this case.

             Therefore, the phrase “green space park area” means the portion of

      the property that one would use in the normal park setting, meaning the

      area on which one actually walks, runs, bikes, and hikes, which is the

      surface, not the subsurface. The trial court's limitation of green space to the

      surface of the property was correct.



      {¶33} Siltstone Resources, LLC v. Ohio Pub. Works Commission, 7th Dist. No. 18

BE 0042, 2019-Ohio-4916, 137 N.E.3d 144, ¶¶ 42-43, reconsideration denied sub nom.

Siltstone Resources, LLC v. State of Ohio Pub. Works Commission, 7th Dist. Belmont

No. 18 BE 0042, 2020-Ohio-729, ¶¶ 42-43, and appeal allowed sub nom. Siltstone

Resources, L.L.C. v. Ohio Pub. Works Comm., 158 Ohio St.3d 1443, 2020-Ohio-1032,

¶¶ 42-43 (2020).

      {¶34} Although we agree with the Seventh District’s decision the use restriction

term “green space park area” refers to the surface of the property only, not to both the

surface and the subsurface, we find resolution of this issue unnecessary to our analysis

of whether the Patriot, Devon, and Siltstone property interests conveyed by CDC violated
Guernsey County, Case No. 19CA00047                                                     17


the use restriction. We disagree with the trial court the extinguishment of the property

interests held by Patriot and Devon rendered this claim moot. OPWC sought declaratory

and injunctive relief, as well as liquidated damages, on its claim CDC violated the use

restriction by entering agreements which permitted use of the property in a manner

inconsistent with its use as a green space park area, whether or not the property was

actually damaged under these agreements. For the following reasons, we conclude the

interests conveyed to Patriot, Devon, and Siltstone all violated the use restriction at the

time the agreements were entered into by CDC.

      {¶35} Patriot: As explained in Siltstone, supra, a lease of mineral rights allows

the lessee reasonable access to the surface, defeating the purpose of a “green space

park area:”

              Appellant OPWC argues that allowing lateral mining still permits

      Appellees reasonable access to the surface and therefore allowing mining

      of any sort defeats the purpose of a “green space park area.” Admittedly, at

      common law the mineral holder was still entitled to reasonable access to

      the surface to reach his or her property. Eastern Mineral Law Foundation,

      The Issues: The Rights and Interests at Play, 23 E. Min. Found. § 9.04,

      2003 WL 22234516 (“Despite the availability of modern directional drilling,

      the development and production of oil and gas in Eastern states most often

      requires reasonable access to and the use and occupancy of some portion

      of the surface.”). See also Skivolocki, 38 Ohio St.2d at 249, 313 N.E.2d 374,

      fn. 1 (“ ‘* * * unless the language of the conveyance by which the minerals

      are acquired repels such construction, the mineral estate carries with it the
Guernsey County, Case No. 19CA00047                                                      18


       right to use as much of the surface as may be reasonably necessary to

       reach and remove the minerals.’ See, also, 37 Ohio Jurisprudence 2d 18,

       Mines and Minerals, Section 14. This implied right of the mineral owner is

       best explained as a practical attempt to insure that both he, and the surface

       owner, can enjoy their respective estates.”). If the mineral holder was not

       permitted reasonable access, then the minerals would essentially be

       landlocked without means of extraction. Typically when mineral rights are

       leased, the lease usually permits reasonable access to the surface by the

       terms of the lease. For instance, often the lease permits drilling of water

       wells, building access roads, installing fencing, and removing trees and

       brush. These acts affect the surface.



       {¶36} Siltstone, supra, at ¶44.

       {¶37} The oil and gas lease CDC entered with Patriot did not include language

preventing use of the surface to access the subsurface minerals.          Thus, the lease

impliedly included the right to use the surface to access the minerals, which is in conflict

with the use of the property as green park space. Further, the language of the Patriot

lease specifically gave Patriot the right to engage in “core drilling, and the drilling,

operating for, and producing of” oil and gas on the property, as well as the right to lay

pipeline, remove timber, dig pits, and construct gates on all access roads on the property.

The lease further made provisions for possible impacts and effects on the property

surface, as well as the water on the property, and thus recognized the possibility of

damage to the surface of the property should Patriot exercise its rights under the lease.
Guernsey County, Case No. 19CA00047                                                                        19


          {¶38} We find the lease CDC entered with Patriot violated the use restriction in

the Thompson deed, as it allowed for Patriot’s use of the surface of the land in a manner

inconsistent with the use of the property as green park space.

          {¶39} Devon: CDC entered into a Water and Surface Use Agreement with Devon.

Pursuant to the agreement, Devon was given the right to withdraw water from the ponds

on the land incident to Devon’s oil and gas activities. Devon could enter the land; draw

water from the ponds in such volumes as Devon required; place and maintain both

surface and subsurface pipelines, equipment, or facilities necessary or convenient for

Devon’s operations or for drawing, transporting, or storing water; distribute on the land

earth, rock, or other materials excavated in laying pipelines or installing, repairing, or

removing other facilities on the land; and cut trees and other vegetation. CDC agreed not

to allow third parties to use the ponds for swimming or other recreational purposes while

Devon conducted operations on or near the pond. Pursuant to an amendment to the

agreement between CDC and Devon, Devon was permitted to pump non-potable3

replenishment water into the pond, and CDC agreed the pond would not be used as a

source of drinking water or fish for human consumption.

          {¶40} Devon exercised its rights under the agreement in 2013. After installing

water pipelines and a portable water pump, Devon withdrew 71,332 barrels of water from

ponds on the property and from a creek, paying CDC a total of $14,726.40 for the water.

          {¶41} We find the water and surface use agreement violated the use restriction in

the Thompson Deed. Not only was Devon given rights to disturb the surface of the land,

the agreement required CDC to ban the public from use of the land during Devon’s



3   Non-potable water is water that is not of drinking quality, but may still be used for many other purposes.
Guernsey County, Case No. 19CA00047                                                      20


operations, which clearly is in conflict with the use of the property as green park space.

Further, the agreement allowed Devon to damage the ponds on the property by pumping

non-potable water into the ponds, preventing the use of the pond for fishing. In addition,

Devon actually laid pipe, installed a water pump, and withdrew water from the property,

in conflict with the use restriction confining the use of the property to green park space.

While the trial court characterized the withdrawal of water as de minimis, we find the

withdrawal of 71,332 barrels of water is in conflict with the use of the property as green

park space. We find the Water and Surface Use Agreement CDC entered with Devon

violated the use restriction of the Thompson deed.

       {¶42} Siltstone: The right of way letter Speedy signed with Siltstone allows

Siltstone, “for consideration paid to CDC the sufficiency of which is hereby acknowledged,

to have access to the right of way.” The agreement further gives “Siltstone, its affiliates,

and its third parties full and direct access to the ROW.” Siltstone agreed to service the

right of way as necessary to maintain it in the same or better condition as when the

agreement was signed.

       {¶43} Siltstone argues its use of the pre-existing road, which also is used by

people using the space for green space park purposes, does not conflict with the use of

the surface of the property as green space, and in fact enhances the roadway because

of its agreement to maintain the road. We disagree. We find the use of the road

concomitant to Siltstone’s commercial business enterprise differs from use of the road for

green space park purposes. The use of the road by Siltstone’s commercial oil and gas

equipment is different in both purpose and in traffic volume to the use of the road by

members of the public, who are driving private vehicles to access the property for
Guernsey County, Case No. 19CA00047                                                      21


recreational purposes. Use of the right of way was not necessary for Siltstone to access

its property, as Siltstone’s property was not landlocked. Accordingly, we find the right of

way agreement Speedy entered with Siltstone violated the use restriction in the deed.

       {¶44} OPWC also argues the transfers of property interests CDC made to Patriot,

Devon, Siltstone, and Guernsey County violated the transfer restriction in the Thompson

deed, which provides:



              4. Restrictions on transfer of the Property. Grantee acknowledges

       that the Grant is specific to Grantee and that OPWC's approval of Grantee's

       application for the Grant was made in reliance on Grantee's continued

       ownership and control of the Property. Accordingly, Grantee shall not

       voluntarily or involuntarily sell, assign, transfer, lease, exchange, convey or

       otherwise encumber the Property without the prior written consent of

       OPWC, which consent may be withheld in its sole and absolute discretion.



       {¶45} It is undisputed CDC did not obtain the written consent of OPWC before

selling, leasing, or encumbering the property via its agreements with Patriot, Devon, and

Siltstone, and Guernsey County. However, the trial court found the transfer restriction

was void as a matter of law.

       {¶46} We note at the outset, we concur with the Seventh District Court of Appeals

that the transfer restriction applies to both the surface and the subsurface. Siltstone,

supra, ¶¶50-51.
Guernsey County, Case No. 19CA00047                                                      22


       {¶47} Turning to the issue of whether the restriction is void, where land is devised

upon condition the devisee shall not sell it, such a restraint is void as repugnant to the

devise and contrary to public policy. Ohio Soc. for Crippled Children & Adults, Inc. v.

McElroy, 175 Ohio St. 49, 52, 191 N.E.2d 543, 546 (1963), citing Anderson v. Cary, 36

Ohio St. 506, 38 Am.Rep. 602 (1881); Hobbs v. Smith, 15 Ohio St. 419 (1864). However,

such a restraint on alienation of property conveyed to a trustee to be held for charitable

or other public uses will usually be given effect. Id., citing Perin v. Carey, 24 How. 465,

65 U.S. 465, 16 L.Ed. 701 (1861); Board of Education of Incorporated Village of Van Wert

v. Inhabitants, 18 Ohio St. 221, 98 Am.Dec. 114 (1868); Babin v. City of Ashland, 160

Ohio St. 328, 345 et seq., 116 N.E.2d 580 (1953); Gearhart v. Richardson, 109 Ohio St.

418, 142 N.E. 890 (1924). “There are two reasons for this: (1) the interest of the public in

encouraging the creation and the continuation of trusts for charitable or public purposes

and (2) the power of a court of equity to authorize a prohibited sale where necessary for

the proper accomplishment of the charitable or public purposes of the trust, thereby

preventing the trust property from being completely inalienable.” Id. at 52-53.

       {¶48} In the instant case, we find the transfer restriction akin to property conveyed

to be held for charitable or public use, and therefore find an exception to the general rule

that restrictions on alienation of property are void.

       {¶49} In 2000, Ohio voters approved a constitutional amendment to create a tax-

exempt bond fund to be used for environmental conservation and revitalization purposes.

Ohio Constitution, Article VIII, Section 2o(A). The amendment permitted the General

Assembly to enact laws in accordance with the amendment. Ohio Constitution, Article

VIII, Section 2o(B). As a result of the amendment, the Clean Ohio Fund Green Space
Guernsey County, Case No. 19CA00047                                                     23


Conservation Program was created and OPWC was tasked with administering the

program.    CDC applied for grant money from OPWC for the specific purpose of

purchasing property to be used for environmental conservation and revitalization

purposes, in order to further the public policy as set forth by the voters in approving the

constitutional amendment to create the tax-exempt bond fund for environmental

conservation. While CDC argues Ohio also has expressed a public policy encouraging

oil and gas production, CDC did not apply for grant funds from OPWC to further the

State’s public policy interest in oil and gas production. However, CDC did apply for and

receive grant funds to further the State’s interest in preserving land for environmental

conservation and revitalization.

      {¶50} The contract between OPWC and CDC, in which CDC agreed to the

transfer restriction as a condition of receiving grant funds, and the resultant purchase of

the property from the Thompsons including the transfer restriction in the deed, are not a

normal land transfer between grantor and grantee. The receipt of grant funds from OPWC

placed the parties in a unique relationship, both as to each other and as to the public.

Pursuant to the constitutional amendment passed by the voters of the state of Ohio,

OPWC became the guardian and “trustee” of the public’s interest in land purchased with

grant money from the State for the purposes expressed in the amendment, while the

public was the third party beneficiary of such agreements. In entering into an agreement

whereby CDC received money from OPWC to purchase property in furtherance of the

purposes set forth in the amendment, CDC stepped into OPWC’s shoes as trustee of the

public interest with respect to property purchased with grant funds. OPWC maintained

an ongoing interest in ensuring the property, which it gave CDC grant money to purchase,
Guernsey County, Case No. 19CA00047                                                           24


was in fact used for the purposes represented by CDC at the time it applied for the grant

money. OPWC maintained a responsibility to ensure any transfer of any interest in the

property would continue to meet the purposes for which the grant money was given. As

such, we find the alienability restriction in this case is not void, as it is similar in character

to a restraint on alienation of property conveyed to a trustee to be held for charitable or

other public uses. See Ohio Soc. For Crippled Children & Adults, supra.

         {¶51} There is no dispute CDC violated the transfer restriction in its transfers to

Patriot, Devon, Siltstone and Guernsey County, as it did not receive the written

permission of OPWC before making the transfers of interest. Further, we find the fact the

Patriot and Devon leases are no longer in effect to be irrelevant. The transfer restriction

was violated at the time of the transfer, entitling OPWC to relief and subjecting CDC to

liability.

         {¶52} Finally, OPWC argues the transfer to Guernsey County violates the

perpetual restriction:



                2. Perpetual Restrictions. The restrictions set forth in this deed shall

         be perpetual and shall run with the land for the benefit of, and shall be

         enforceable by, Ohio Public Works Commission (OPWC). This deed and

         the covenants and restrictions set forth herein shall not be amended,

         released, extinguished or otherwise modified without the prior written

         consent of OPWC, which consent may be withheld in its sole and absolute

         discretion.
Guernsey County, Case No. 19CA00047                                                      25


       {¶53} The deed restrictions are not present in the deed transferring two acres from

CDC to Guernsey County. It is undisputed CDC did not obtain prior written consent of

OPWC before transferring the property without the requisite deed restrictions.

Accordingly, we find the transfer to Guernsey County violates the perpetual restriction, in

addition to the transfer restriction as noted supra.

       {¶54} In sum, we find the trial court erred in granting summary judgment to CDC

and denying partial summary judgment to OPWC on the issue of violation of the use

restriction by CDC’s transfer of property interests to Patriot, Devon, and Siltstone; on the

issue of violation of the transfer restriction by CDC’s transfer of property interests to

Patriot, Devon, Siltstone, and Guernsey County; and on the issue of violation of the

perpetual restriction and transfer restriction by CDC’s sale of property to Guernsey

County.

       {¶55} The first assignment of error is sustained.

                                               II.

       {¶56} In its second assignment of error, OPWC argues the trial court erred in

finding it was not entitled to injunctive or declaratory relief.

       {¶57} The trial court found pursuant to R.C. 164.26(A), OPWC’s relief was limited

solely to liquidated damages, and OPWC could not receive injunctive or declaratory relief.

R.C. 164.26(A) provides:



              The director of the Ohio public works commission shall establish

       policies related to the need for long-term ownership, or long-term control

       through a lease or the purchase of an easement, of real property that is the
Guernsey County, Case No. 19CA00047                                                    26


      subject of an application for a grant under sections 164.20 to 164.27 of the

      Revised Code and establish requirements for documentation to be

      submitted by grant applicants that is necessary for the proper administration

      of this division. The policies shall provide for proper liquidated damages and

      grant repayment for entities that fail to comply with the long-term ownership

      or control requirements established under this division.



      {¶58} The enforcement provision of the deed provides for both equitable relief and

liquidated damages:



             3. Enforcement. If Grantee, or its successors or assigns as owner of

      the Property, should fail to observe the covenants and restrictions set forth

      herein, the Grantee or it is successors or assigns, as the case may be, shall

      pay to OPWC upon demand, as liquidated damages, an amount equal to

      the rate of (a) two hundred percent (200%) of the amount of the Grant

      received by Grantee, together with interest accruing at the rate of six

      percent (6%) per annum from the date of Grantee's receipt of the Grant, or

      (b) two hundred percent (200%) of the fair market value of the Property as

      of the date or demand by OPWC. Grantee acknowledges that such sum is

      not intended as, and shall not be deemed, a penalty, but is intended to

      compensate for damages suffered in the event a breach or violation of the

      covenants and restrictions set forth herein, the determination of which is not

      readily ascertainable.
Guernsey County, Case No. 19CA00047                                                        27


              OPWC shall have the right to enforce by any proceedings at law or

       in equity, all restrictions, conditions, and covenants set forth herein. Failures

       by OPWC to proceed with such enforcement shall in no event be deemed

       a waiver of the right to enforce at a later date the original violation or

       subsequent violation.



       {¶59} The Seventh District addressed this identical issue, concluding OPWC was

entitled to injunctive and declaratory relief, in addition to liquidated damages provided for

in the statute:



              First, nothing in R.C. 164.26(A) prevents equitable relief.          That

       section instructs the director of the OPWC to establish policies related to

       the need for long-term ownership or control of property that is subject to

       clean Ohio conservation fund grants. It also states the policies are to

       provide for proper liquidated damages and grant repayment for entities that

       fail to comply with the long-term ownership or control requirements.

       Reading the plain wording of the statute leads to the conclusions that (1)

       the OPWC director must establish policies relating to the need for long-term

       ownership or control of the property that is the subject of the grant and (2)

       some of those policies are to provide for liquidated damages and grant

       repayment for failure to comply with the long-term requirement.

              Nothing in the statute prevents equitable relief as a remedy for failure

       to comply with the long-term ownership requirement. The statute does not
Guernsey County, Case No. 19CA00047                                                    28


      include an exclusive list of remedies. The remedies the statute mentions

      are in regard to instructing the director of the OPWC to establish policies to

      provide for liquidated damages and grant repayment.

             Second, the Enforcement Restriction clearly and unambiguously

      provides that Appellant OPWC has the right to enforce the deed restrictions

      in equity. Nothing in the language of the Enforcement Restriction can be

      construed to mean anything else.



      {¶60} Siltstone, supra, ¶¶66-68.

      {¶61} We agree with the reasoning of the Seventh District. As this Court has

previously noted:



             The Supreme Court of Ohio has consistently held that “[w]here the

      language contained in a deed restriction is indefinite, doubtful and capable

      of contradictory interpretation, that construction must be adopted which

      least restricts the free use of the land.” Houk v. Ross (1973), 34 Ohio St.2d

      77, 296 N.E.2d 266, paragraph two of the syllabus, overruled on other

      grounds by Marshall v. Aaron (1984), 15 Ohio St.3d 48, 15 OBR 145, 472

      N.E.2d 335. “Where the language in the restriction is clear, the court must

      enforce       the   restriction. Otherwise, the court would be rewriting the

      restriction. * * * The key issue is to determine the intent of the parties as

      reflected by the language used in the restriction.” Dean v. Nugent Canal
Guernsey County, Case No. 19CA00047                                                             29


       Yacht Club, Inc. (1990), 66 Ohio App.3d 471, 475, 585 N.E.2d 554, 556-

       557.



       {¶62} Morgan Woods Homeowners' Assn. v. Wills, 5th Dist. Licking No. 11 CA 57,

2012-Ohio-233, ¶ 42.

       {¶63} We find the language in the restriction agreed to by the parties is clear:

OPWC has the right to enforce the deed restrictions in law and in equity. We find R.C.

164.26(A) provides for liquidated damages, but does not make liquidated damages the

sole remedy available to OPWC.

       {¶64} The second assignment of error is sustained.

                                                    III.

       {¶65} In its third assignment of error, OPWC argues the court erred in granting

summary judgment finding the liquidated damages provision to be a penalty, and

therefore unenforceable.4

       {¶66} The trial court made the following conclusion of law regarding the liquidated

damages provision:



               OPWC’s claims relating to the Devon Energy Water and Surface

       Agreements do not establish a claim for damages. The OPWC put forth no

       evidence that the withdrawal of the de minimus [sic] amount of water for a

       limited period of time conflicts with the use of the CDC property as a green

       space park area. Additionally, OPWC’s claim for damages based upon the


4 OPWC did not seek summary judgment on the validity of the liquidated damages provision, but rather
argues evidence is necessary on the issue of whether the damages clause is a penalty.
Guernsey County, Case No. 19CA00047                                                   30


     Enforcement Provision in the Thompson Deed, is disproportionate to the

     alleged damages sustained and rather act [sic] as a penalty. Liquidated

     damages clauses are invalid and unenforceable where the damages clause

     provides for an amount disproportionate to the actual damage. Lakewood

     Creative Customers v. Sharp, 31 Ohio App. 3d 116, Syll. ¶2 (1986).



     {¶67} Judgment entry, October 25, 2019, conclusion of law 9.

     {¶68} The enforcement clause in the instant case provides in pertinent part:



            3. Enforcement. If Grantee, or its successors or assigns as owner of

     the Property, should fail to observe the covenants and restrictions set forth

     herein, the Grantee or it is successors or assigns, as the case may be, shall

     pay to OPWC upon demand, as liquidated damages, an amount equal to

     the rate of (a) two hundred percent (200%) of the amount of the Grant

     received by Grantee, together with interest accruing at the rate of six

     percent (6%) per annum from the date of Grantee's receipt of the Grant, or

     (b) two hundred percent (200%) of the fair market value of the Property as

     of the date or demand by OPWC. Grantee acknowledges that such sum is

     not intended as, and shall not be deemed, a penalty, but is intended to

     compensate for damages suffered in the event a breach or violation of the

     covenants and restrictions set forth herein, the determination of which is not

     readily ascertainable.
Guernsey County, Case No. 19CA00047                                                      31


      {¶69} While generally liquidated damages clauses are enforceable, such

damages are not enforceable on public policy grounds when the stipulated damages

constitute a penalty. Lake Ridge Academy v. Carney, 66 Ohio St.3d 376, 381, 613 N.E.2d

183, 187 (1993). The Ohio Supreme Court has set forth the following test to judge a

stipulated damages provision:



              Where the parties have agreed on the amount of damages,

      ascertained by estimation and adjustment, and have expressed this

      agreement in clear and unambiguous terms, the amount so fixed should be

      treated as liquidated damages and not as a penalty, if the damages would

      be (1) uncertain as to amount and difficult of proof, and if (2) the contract as

      a whole is not so manifestly unconscionable, unreasonable, and

      disproportionate in amount as to justify the conclusion that it does not

      express the true intention of the parties, and if (3) the contract is consistent

      with the conclusion that it was the intention of the parties that damages in

      the amount stated should follow the breach thereof.



      {¶70} Samson Sales, Inc. v. Honeywell, Inc., 12 Ohio St.3d 27, 29, 465 N.E.2d

392, 394 (1984), citing Jones v. Stevens, 112 Ohio St. 43, 146 N.E. 894, 3 Ohio Law Abs.

164 (1925).

      {¶71} The Supreme Court has provided additional guidance for determining if

stipulated damages are a penalty:
Guernsey County, Case No. 19CA00047                                                       32


              [I]t is necessary to look to the whole instrument, its subject-matter,

      the ease or difficulty of measuring the breach in damages, and the amount

      of the stipulated sum, not only as compared with the value of the subject of

      the contract, but in proportion to the probable consequences of the breach,

      and also to the intent of the parties ascertained from the instrument itself in

      the light of the particular facts surrounding the making and execution of the

      contract. Jones v. Stevens (1925), 112 Ohio St. 43, 146 N.E. 894,

      paragraph one of the syllabus. “Neither the parties' actual intention as to its

      validity nor their characterization of the term as one for liquidated damages

      or a penalty is significant in determining whether the term is valid.” 3

      Restatement of Contracts, supra, at 159, Section 356, Comment c. See

      Samson Sales, Inc. v. Honeywell, Inc. (1984), 12 Ohio St.3d 27, 28, 12 OBR

      23, 24, 465 N.E.2d 392, 394. Thus, when a stipulated damages provision is

      challenged, the court must step back and examine it in light of what the

      parties knew at the time the contract was formed and in light of an estimate

      of the actual damages caused by the breach. If the provision was

      reasonable at the time of formation and it bears a reasonable (not

      necessarily exact) relation to actual damages, the provision will be

      enforced. See 3 Restatement of Contracts, supra, at 157, Section 356(1).



      {¶72} Lake Ridge Academy, supra, at 381–82, 613 N.E.2d at188.

      {¶73} In the instant case, the trial court did not apply the test set forth by the Ohio

Supreme Court in Lake Ridge Academy, supra and Samson Sales, supra, nor did it step
Guernsey County, Case No. 19CA00047                                                         33


back and examine the liquidated damages provision in light of what the parties knew at

the time the contract was formed. Rather, the trial court based its evaluation of damages

on its conclusion the only potential violation of the deed restrictions by CDC in this case

was the water and surface lease agreement under which Devon withdrew water from the

ponds on the property, an amount of water the court classified as de minimis. As we have

found multiple violations by CDC of the deed restrictions and have found the actions of

Devon were more than de minimis, we find the trial court’s analysis was flawed.

       {¶74} R.C. 164.26(A) specifically requires liquidated damages, stating, “The

policies shall provide for proper liquidated damages and grant repayment for entities that

fail to comply with the long-term ownership or control requirements established under this

division.”   This statute appears to reflect a legislative determination the amount of

damages for violation of the use and transfer restrictions, designed to further the public

policy expressed by the electorate of the State in enacting the constitutional amendment

pursuant to which CDC received grant money in the instant case, are difficult to ascertain

as to amount and difficult to prove. We find the trial court did not apply the appropriate

test concerning liquidated damages at the time the agreement was entered, and

improperly limited its analysis to CDC’s contract with Devon (which it erroneously held

did not violate the use restriction) instead of all the use and transfer restriction violations

identified supra.

       {¶75} The third assignment of error is sustained.
Guernsey County, Case No. 19CA00047                                                    34


                                        Cross-Appeal I.

         {¶76} On cross-appeal, Devon argues the trial court erred in granting CDC’s

motion for summary judgment on its cross-claim for defense and indemnification pursuant

to the Water and Surface Use Agreement it entered with CDC.

         {¶77} We note at the outset because OPWC has abandoned its claim for

monetary damages against Devon, the issue on cross-appeal concerns only CDC’s

contractual duty to defend Devon in the instant action, as indemnification is no longer at

issue.

         {¶78} The relevant clause in the First Water and Surface Use Agreement entered

into by CDC and Devon provides:



                5. LANDOWNER AGREES TO HEREBY FOREVER INDEMNIFY,

         RELEASE, ACQUIT, DISCHARGE, AND HOLD HARMLESS DEVON

         FROM ALL EXISTING AND FUTURE CLAIMS, DEMANDS, AND CAUSES

         OF ACTION, WHETHER KNOWN OR UNKNOWN, WHETHER BASED ON

         TORT (INCLUDING STRICT LIABILITY), CONTRACT, OR STATUTORY

         LAW, WHETHER GOVERNED BY FEDERAL, STATE, TRIBAL, OR

         LOCAL LAWS, RULES, OR ORDINANCES, THAT HAVE BEEN

         BROUGHT OR THAT COULD HAVE BEEN BROUGHT IN ANY COURT,

         TRIBUNAL, OR FORUM, IN THIS OR ANY OTHER JURISDICTION, THAT

         RELATE TO OR ARISE FROM (A) DAMAGES TO THE PONDS CAUSED

         BY THE OPERATIONS, OR (B) PERSONAL INJURY OR DEATH

         RESULTING FROM THE PONDS OR THE CONTENTS OF THE PONDS
Guernsey County, Case No. 19CA00047                                                      35


       BEING USED FOR PURPOSES NOT PERMITTED BY PARAGRAPH 5 OF

       THIS AGREEMENT.



       {¶79} The trial court found the cross-claim brought by OPWC against Devon did

not fall within the terms of this clause as a matter of law, as the claim was not for damage

to the ponds or personal injury or death.      We disagree. Given the broad language

concerning actions arising in tort, contract, or pursuant to statute, we find the instant

action, based on the contract between Devon and CDC allowing damage to the ponds,

fell within the scope of this clause. It is clear, OPWC was initially seeking monetary

damages from Devon.

       {¶80} CDC argues this clause is no longer in effect due to the second agreement

entered between the parties, which states in pertinent part:



               This Agreement represents the entire agreement between the

       Parties relating to the subject matter hereof and supersedes any prior

       agreements, representations, or statements, oral or written, relating to the

       subject matter of this Agreement.



       {¶81} This second agreement did not include an indemnification clause.

       {¶82} However, at the same time the parties entered the second agreement, they

also amended the first agreement. The amendment specifically changed the phrase

“paragraph 5” in the last line of the indemnification clause cited above to “paragraph 4” to

correct a typographical error in the first agreement. The amendment provides in pertinent
Guernsey County, Case No. 19CA00047                                                      36


part, “Except as hereby amended, all other terms and conditions of the Agreement shall

remain in full force and effect as presently written.”

       {¶83} We find because the second agreement did not specifically address or

otherwise eliminate the indemnification clause, the language in the amendment to the first

agreement, “all other terms and conditions of the [first] Agreement shall remain in full

force and effect as presently written” controls. Accordingly, we find the indemnification

clause remains valid and enforceable.

       {¶84} Finally, CDC argues the above cited language does not include a duty to

defend. Although Devon argues CDC raises this issue for the first time on appeal, CDC

raised this issue in a footnote in their reply to Devon’s motion for partial summary

judgment on this issue, filed September 17, 2019, noting the word “defend” is not utilized

in Paragraph 5 of the first agreement.

       {¶85} In the insurance arena, the duty to provide a defense to an insured under

an insurance contract is separate and distinct from the duty to pay a judgment or an award

of costs against the insured. Pasco v. State Auto. Mut. Ins. Co., 10th Dist. Franklin No.

04AP-696, 2005-Ohio-2387, ¶15. The language in the indemnification clause in the first

agreement does not include a duty to defend. Because the duty of a defense is separate

from the duty to indemnify, and the contract between the parties did not provide for a right

to a defense but only to indemnification, CDC was not contractually obligated to provide

a defense to Devon, and the trial court did not err in granting CDC’s motion for summary

judgment on Devon’s cross-claim.

       {¶86} The assignment of error on cross-appeal is overruled.
Guernsey County, Case No. 19CA00047                                             37


      {¶87} The judgment of the Guernsey County Court of Common Pleas, granting

the summary judgment motions of CDC, Siltstone, Devon, and Patriot, and the motions

for judgment on the pleadings of Gulfport, Synergy, and Whispering Pines, thereby

dismissing OPWC’s counterclaims and crossclaims, is reversed. Pursuant to App. R.

12(B), we hereby enter final judgment granting OPWC’s motion for partial summary

judgment. The judgment of the Guernsey County Common Pleas Court granting CDC’s

motion for summary judgment dismissing Devon’s cross-claim against CDC is affirmed.

This cause is remanded for further proceedings consistent with this opinion.


By: Hoffman, P.J.
Wise, John, J. and
Wise, Earle, J. concur
