[Cite as Helms v. Whitney, 2014-Ohio-2413.]


                                      COURT OF APPEALS
                                    HOLMES COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


DARRELL E. HELMS, ET. Al.,                    :    JUDGES:
                                              :
                                              :    Hon. Sheila G. Farmer, P.J.
        Plaintiffs - Appellees                :    Hon. John W. Wise, J.
                                              :    Hon. Craig R. Baldwin, J.
                                              :
-vs-                                          :
                                              :
THOMAS C. WHITNEY, ET. Al.,                   :    Case No. 13CA014
                                              :
                                              :
        Defendants - Appellants               :    OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Holmes County
                                                   Court of Common Pleas, Case No.
                                                   12-CV-0145



JUDGMENT:                                          Affirmed in part; Reversed in part




DATE OF JUDGMENT:                                  June 4, 2014



APPEARANCES:

For Plaintiffs-Appellees                           For Defendants-Appellants

THOMAS D. WHITE                                    ROBERT W. ECKINGER
CHRISTOPHER M. WHITE                               Eckinger Law Offices, LTD.
ALYSSE L. GILES                                    1201- 30th Street, N.W., Suite 101-B
White Law Office, Co.                              Canton, OH 44709
209 N. Washington St.
Millersburg, OH 44654
Holmes County, Case No. 13CA014                                                                          2

Baldwin, J.

       {¶1}     Defendants-appellants Thomas C. Whitney and Donald E. Ridgeway

appeal from the November 6, 2013 Decision and Judgment Entry of the Holmes County

Court of Common Pleas.

                              STATEMENT OF THE FACTS AND CASE

       {¶2}     Appellant Thomas Whitney is the permit owner of Crider Number 4 well,

which is located on property owned by appellees Darrell and Dortha Helms. The well

was completed in 1918.

       {¶3}     In January of 1976, appellees and appellant Ridgeway1 executed an oil

and gas lease. The lease, which was recorded in 1977, stated that “[l]essee agrees to

commence a well on said premises within 6 months from this date or pay Lessor

…$34.00 for each 6 months thereafter until such well is commenced or the lease

surrendered.” Under the terms of the lease, the lease could be held if oil and gas was

produced on the property and royalties were to be paid to appellees. No new well was

ever drilled on the premises.

       {¶4}     On or about March 15, 1976, appellant Ridgeway transferred his rights

under the lease and to the well to appellant Whitney. The trial court found that, from

1976 to approximately the end of 2008, some oil and gas was produced and royalties

were paid.

       {¶5}     On July 16, 1981, appellees recorded an Affidavit of Non-Compliance with

the Holmes County Recorder. Appellees, in their affidavit, indicated that they had not




1
 Appellant Ridgeway testified that he bought the well from Elvi and Charles Crider, who owned the land
prior to appellees.
Holmes County, Case No. 13CA014                                                           3


received any royalties under the lease, that there were no producing wells on the land in

the lease and that the lease was null and void.

      {¶6}    In 2009, a storm blew a goat pen, which was owned by appellees, onto

the electric utility pole which supplied electricity to the pump on the Cider Number 4

well. As a result, the pole broke and electric power to the well was disrupted. The

parties agree that there was a disagreement between them regarding placement of a

new electric pole. Appellants assert that appellees interfered with restoring electricity to

the pump while appellees dispute this. According to appellant Whitney, a representative

of the electric company came out to the property and designated where the pole needed

to be set, but appellees would not allow the pole to be set there and the representative

left. Without the new pole, appellants claim they were unable to produce the well.

      {¶7}    On April 3, 2012, the Ohio Department of Natural Resources Division of

Mineral Resources Management (hereinafter “ODNR”) conducted an inspection of the

subject well after a complaint was received that the well was not producing. In its report,

the ODNR found that the well was not producing and that no production had been

reported since 2009 and that there was no identification on the tank or well. The ODNR

further stated that the electricity had been disconnected and ordered appellant Whitney

to plug, produce or sell the well by July 4, 2012. Appellants did not do so. A follow-up

inspection was conducted on May 2, 2012. In its report, the ODNR stated that the well

was still not producing and that there was still no identification. Following an inspection

on July 11, 2012, the ODNR found that the well was “still not producable.” No oil has

been produced from the well since the storm in 2009. According to appellee Dortha

Helm, appellees have not received any royalty payments since January of 2009. At the
Holmes County, Case No. 13CA014                                                                              4


bench trial in this matter, appellant Whitney agreed that the check in January of 2009

was the last royalty check and that there was still an electrical problem with producing

the well. No oil has been produced from the well since the storm in 2009.

       {¶8}     In September or October of 2012, appellant Whitney painted identification

on the tank.

       {¶9}     Thereafter, on November 28, 2012, appellees filed a complaint for

declaratory judgment.          Appellees, in their complaint, asked that various leases,

including the one at issue in this case, be declared null and void2.                          The matter

proceeded to a bench trial on July 19, 2013 and August 14, 2013. After the trial, the

parties filed proposed findings of fact and conclusions of law.

       {¶10}    Pursuant to a Decision and Judgment Entry filed on November 6, 2013,

the trial court found that it was not appellees’ fault that production of the subject well

had ceased and ordered that the subject lease was forfeited. The trial court ordered that

the lease be cancelled of record. The trial court further stated, in relevant part, as

follows: “pursuant to Ohio Revised Code section 1509.062 the Court feels that the well

is inactive, has not been properly produced and therefore must be plugged immediately

by the Defendants.” The trial court ordered that the plugging be completed no less than

four months from the date of the trial court’s decision.

       {¶11}    Appellants now raise the following assignments of error on appeal:

       {¶12}    THE TRIAL COURT’S FINDING THAT THE APPELLEES DID NOT

PREVENT THE APPELLANTS FROM PRODUCING THE CRIDER WELL WAS

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.


2
 The trial court, in an Order filed on June 24, 2013, declared the other oil and gas leases to be null and
void.
Holmes County, Case No. 13CA014                                                          5


      {¶13}   THE TRIAL COURT’S FINDING THAT A GENERATOR COULD HAVE

BEEN SUPPLIED BY THE APPELLANTS TO PRODUCE THE CRIDER WELL WAS

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

      {¶14}   THE TRIAL COURT’S FINDING THAT A NEW ELECTRIC POLE WAS

SET SOMETIME IN EITHER 2011 OR 2012 AND THAT POWER COULD HAVE BEEN

RUN TO THE WELL AT THAT TIME WAS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.

      {¶15}   THE TRIAL COURT’S ORDER THAT THE CRIDER WELL MUST BE

PLUGGED WITHIN FOUR MONTHS OF THE COURT’S DECISION WAS CONTRARY

TO LAW.

      {¶16}   THE TRIAL COURT’S FINDING THAT THE CRIDER WELL HAD AN

INACTIVE STATUS PURSUANT TO R.C. 1509.062(A)(1) WAS CONTRARY TO LAW.

                                            I, II III

      {¶17}   Appellants, in their first three assignments of error, challenge certain

findings made by the trial court as being against the manifest weight of the evidence.

      {¶18}   We note that a judgment supported by some competent, credible evidence

will not be reversed by a reviewing court as against the manifest weight of the evidence.

C.E. Morris Co. v. Foley Construction Co., 54 Ohio St.2d 279, 280, 376 N.E.2d 578

(1978). A reviewing court must not substitute its judgment for that of the trial court

where there exists some competent and credible evidence supporting the judgment

rendered by the trial court. Myers v. Garson, 66 Ohio St.3d 610, 1993–Ohio–9, 614 N.E

.2d 742. The underlying rationale for giving deference to the findings of the trial court

rests with the knowledge that the trial judge is best able to view the witnesses and
Holmes County, Case No. 13CA014                                                              6


observe their demeanor, gestures, and voice inflections, and use these observations in

weighing the credibility of the proffered testimony. Seasons Coal Co. v. City of

Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984).

      {¶19}     While appellees argue that this Court should apply an abuse of discretion

standard, we note that when a declaratory judgment action involves, as here, issues of

fact, a manifest weight of the evidence standard is applicable. See, for example, Blair v.

McDonagh, 177 Ohio App.3d 262, 2008-Ohio-3698, 894 N.E.2d 377 (1st Dist).

      {¶20}     The trial court, in its November 6, 2013 Decision and Judgment Entry,

found, in relevant part, as follows: “The Court finds that the parties both agree that there

was a new electric line pole that was set up sometime in the year 2011 or 2012 and that

power could have been run to the well at that time. In addition, the Court finds that even

with the electric supply terminated that a generator could have been supplied by

Defendants to produce this well.

      {¶21}     “The Court finds that it is not the fault of the Plaintiffs that production has

been ceased.”

      {¶22}     Appellants maintain that such findings are against the manifest weight of

the evidence.

      {¶23}     There is no dispute that, after the storm blew the electric pole down, the

parties were unable to agree where a new pole should be placed. Appellant Ridgeway

testified that appellees did not want the pole in their yard. Appellee Dortha Helms

testified that she did not want the pole to be put in the yard because of concerns that

the pole placement would interfere with gas lines that her son put in. She testified that “I

don’t need it in my yard when he’s got an acre around his well. “ Trial Transcript at 53.
Holmes County, Case No. 13CA014                                                        7


She further testified that she would not have minded if appellant put a pole in the

pasture and that she wanted the pole put closer to the well. Appellant Darrell Helms

testified that he disagreed with where appellants wanted the pole to be located. The

following is an excerpt from his testimony:

      {¶24}   Q. The uh, Ridgeway and Whitney stated that the, they had the utility

company there to set a new pole and the Helms would not allow the electric company to

set a pole there on their property…

      {¶25}   Q: Do you agree with that statement by them or you disagree with it or do

you not know.

      {¶26}   A:   Well he was wanting to set it. I disagreed with it because why not

over there instead of there.

      {¶27}   Q: Was the pole finally set?

      {¶28}   A:   No it wasn’t set.

      {¶29}   Q:   But you didn’t want it set where they wanted it.      You wanted it

somewhere else?

      {¶30}   A: Well across the fence he wanted it in the yard to go up in the up to the

gate and I got a gas line that runs through there.

      {¶31}   Q: This is the line that your son put in?

      {¶32}   A: Yes.

      {¶33}   Q: And you didn’t want it near the gas line?

      {¶34}   A: Well I didn’t want no pole setting there. Why have a pole that close to

the other pole?

      {¶35}   Trial Transcript at 95.
Holmes County, Case No. 13CA014                                                             8


      {¶36}   He also testified that he did not want a pole near a bush in the yard and

that putting the pole where appellants wanted would have affected the bush and the gas

line put in by their son that went to appellees’ house. According to appellant Darrell

Helms, a pole could have been placed where the pole that blew down was located.

      {¶37}   Appellants contend that appellee Darrell Helms, on or around October of

2012, placed a tractor on appellee’s driveway while appellants were on the property,

effectively blocking appellants from exiting. Appellant Whitney testified that the previous

fall, he went to do something at the property and his access was blocked by a tractor.

When asked at trial if he had done so, appellant Darrell Helms testified that he never

blocked appellant Ridgeway from coming in and out of the property. He admitted

placing a 1995 Chevy pickup truck in the driveway blocking appellants, but testified that

he did so because “he was on the property up there and he wasn’t suppose (sic) to be.”

Trial Transcript at 98. He testified that appellant Ridgeway was not working on the well

at the time and that he had told him “before he went through not to go up there…” Trial

Transcript at 98. Appellant Darrell Helms further testified that after the first day of trial,

his granddaughter had parked her Honda in the driveway, but that the Honda did not

block access.

      {¶38}   Based on the foregoing, we find that the trial court’s finding that appellees

did not prevent appellants from producing the well was not against the manifest weight

of the evidence. The trial court, as trier of fact, was in the best position to access

credibility and found appellees to be credible.

      {¶39}   Appellants also take issue with the trial court’s finding that appellants

could have used a generator to produce the Crider well. Appellant Whitney did not deny
Holmes County, Case No. 13CA014                                                            9


that it would have been possible to put a gas powered pump on the well, but testified

that it would be unreasonable to do so because electricity was available and that it

would have been very expensive to do so. Appellant Whitney also testified that in 2012,

he reported to the ODNR that 45 barrels were produced from the well. However, he

testified that the oil probably was not brought out of the ground in 2012 but was

previously produced and that no royalties were paid. He testified that they used their

temporary engine sometime between April 4, 2012 and July of 2012. Later, appellant

Whitney testified that some of the 45 barrels may have been brought out in 2012

“because I think we did run it some with that gasoline engine.” Trial transcript at 26.

When asked whether it was possible that a gas engine could produce it without

electricity, he testified that “ I would say gasoline without this uh, this is a rather small

engine and I don’t know how well it would work on a continuing basis anyhow.” Trial

Transcript at 26. Appellant Whitney testifies that it was not practical to manually start up

a gas engine.

      {¶40}   Based on the foregoing, we find that there was competent, credible

evidence supporting the trial court’s finding that a gas generator could have been used

to produce the Crider well.

      {¶41}   Appellants also argue that the trial court’s finding that a new electric pole

was set sometime in 2011 or 2012 and that electric power could have been run to the

well at that time was against the manifest weight of the evidence. Appellee Dortha Helm

testified that a new electric pole which is visible in several of photos that were admitted

as exhibits     has “been there for a long time.” Trial Transcript at 156.        On cross-

examination, she was unable to say when the photos were taken, but testified that the
Holmes County, Case No. 13CA014                                                           10


photos were taken “maybe two or three years ago or more.” Trial Transcript at 159. Her

husband testified that the new pole could have been erected three or four years ago.

When questioned about the new pole, appellant Whitney testified that he did not know

how the pole came about and that he first saw the new pole after the case sub judice

was filed in November of 2012. He indicated that he would go onto the property at least

twice a year. Appellant Ridgeway testified that he visited the well every other month

and that he did not know when the new pole was erected. He also indicated that he did

not notice the new pole until after the lawsuit was filed.

      {¶42}   Based on the testimony that the photos taken by appellee Dortha Helms

showing the new pole were taken two or three years before the trial, we find that the trial

court’s finding was not against the manifest weight of the evidence. Moreover,

assuming, arguendo, that appellants are correct that the trial court’s finding about the

new pole as against the manifest weight of the evidence, we note that the trial court

alternatively stated that, “[i]n addition,…even with the electrical supply terminated…a

generator could have been supplied by the Defendants to produce this well.” Any error

with respect to the finding about the placement of the new pole was, therefore,

harmless.

      {¶43}   Appellants’ first, second and third assignments of error are, therefore,

overruled.

                                                IV

      {¶44}   Appellants, in their fourth assignment of error, argue that the trial court did

not have jurisdiction to order that the well must be plugged within four months.
Holmes County, Case No. 13CA014                                                          11

      {¶45}   We review the issue of subject-matter jurisdiction de novo. State ex rel.

Post v. Speck, 185 Ohio App.3d 828, 2010–Ohio–105, 925 N.E.2d 1042, ¶ 10 (3d Dist.).

      {¶46}   R.C. 1509.02 states, in relevant part, as follows: “There is hereby created

in the department of natural resources the division of oil and gas resources

management, which shall be administered by the chief of the division of oil and gas

resources management. The division has sole and exclusive authority to regulate the

permitting, location, and spacing of oil and gas wells and production operations within

the state, …” As noted by the court in State, ex rel. Morrison v. Beck Energy Corp., 9th

Dist. Summit No. 2593, 2013-Ohio- 356,” R.C. Chapter 1509 thus provides a

comprehensive regulatory scheme for oil and gas wells operations in the state.” Id at

paragraph 17.

      {¶47}   R.C. 1509.062, which is cited by the trial court, states, in relevant part, as

follows: “(A)(1) The owner of a well that has not been completed, a well that has not

produced within one year after completion, an existing well that is not a horizontal well

and that has no reported production for two consecutive reporting periods as reported in

accordance with section 1509.11 of the Revised Code, or an existing horizontal well that

has no reported production for eight consecutive reporting periods as reported in

accordance with section 1509.11 of the Revised Code shall plug the well in accordance

with section 1509.12 of the Revised Code, obtain temporary inactive well status for the

well in accordance with this section, or perform another activity regarding the well that is

approved by the chief of the division of oil and gas resources management.” (Emphasis

added). In turn, R.C. 1509.12 provides, in relevant part, as follows: ”(B) When the chief

finds that a well should be plugged, the chief shall notify the owner to that effect by
Holmes County, Case No. 13CA014                                                             12


order in writing and shall specify in the order a reasonable time within which to comply.

No owner shall fail or refuse to plug a well within the time specified in the order. Each

day on which such a well remains unplugged thereafter constitutes a separate offense.“

(Emphasis added).

      {¶48}   Moreover, R.C. 1509.13(A) states that a person plugging and abandoning

a well must have a permit to do so issued by the chief.

      {¶49}   When the meaning of the statute is “clear and unambiguous,” the statute

is to be applied “as written.” Boley v. Goodyear Tire & Rubber Co., 125 Ohio St.3d 510,

2010–Ohio–2550, 929 N.E.2d 448, ¶ 20. As noted by appellants, the above statutes

clearly and unambiguously “position the Chief as the sole initial decider of all issues

related the plugging of Ohio wells.” We find, therefore, that the trial court did not have

jurisdiction to order the well plugged.

      {¶50}   Based on the foregoing, appellant’s fourth assignment of error is

sustained.

                                                 V

      {¶51}   Appellants, in their fifth assignment of error, argue that the trial court’s

finding that the Crider well has an inactive status pursuant to R.C. 1509.062(A)(1) was

contrary to law because the Revised Code does not give the trial court authority to

declare a well to have an inactive status.

      {¶52}   Appellees, in their brief, concede that if the trial court lacked jurisdiction to

order the well plugged, it lacked jurisdiction to make a determination of whether or not

the well is in an inactive status. Having found that the trial court lacked jurisdiction to

order the well plugged, appellants’ fifth assignment of error is sustained.
Holmes County, Case No. 13CA014                                                    13


      {¶53}   Accordingly, the judgment of the Holmes County Court of Common Pleas

is affirmed in part and reversed in part. Those parts of the trial court’s November 6,

2012 Decision and Judgment Entry ordering appellants to plug the well within four

months and finding the well to be inactive are hereby VACATED.


By: Baldwin, J.

Farmer, P.J. and

Wise, J. concur.
