[Cite as Bilbaran Farm, Inc. v. Bakerwell, Inc., 2013-Ohio-2487.]


                                        COURT OF APPEALS
                                       KNOX COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


BILBARAN FARM, INC.                                   :    JUDGES:
                                                      :
                                                      :    Hon. John W. Wise, P.J.
       Plaintiff-Appellant                            :    Hon. Patricia A. Delaney, J.
                                                      :    Hon. Craig R. Baldwin, J.
-vs-                                                  :
                                                      :    Case No. 12-CA-21
                                                      :
BAKERWELL, INC., ET AL.                               :
                                                      :
                                                      :
       Defendants-Appellees                           :    OPINION


CHARACTER OF PROCEEDING:                                    Appeal from the Knox County Court of
                                                            Common Pleas, Case No. 12-QT-08-
                                                            0408



JUDGMENT:                                                   AFFIRMED



DATE OF JUDGMENT ENTRY:                                     June 12, 2013



APPEARANCES:

For Plaintiff-Appellant:                                   For Defendants-Appellees:

WILLIAM PAUL BRINGMAN                                      STEVEN J. SHROCK
13 E. College Street                                       CLINTON G. BAILEY
Fredericktown, OH 43019-1192                               P.O. Box 469
                                                           Mount Vernon, OH 43050
Knox County, Case No.12-CA-21                                                             2

Delaney, J.

       {¶1} Plaintiff-Appellant Bilbaran Farm, Inc. appeals the October 25, 2012

judgment entry of the Knox County Court of Common Pleas dismissing Bilbaran Farm,

Inc.’s complaint.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} Plaintiff-Appellant Bilbaran Farm, Inc. entered into an oil and gas lease

with Professional Petroleum Services, Inc. on May 12, 2003. The lease agreement

granted Professional Petroleum Services “all of the oil and gas and the constituents of

either, in and under the lands hereinafter described together with the exclusive right to

drill and operate for, produce, and market oil and gas and their constituents, the right to

lay pipeline to transport oil and gas and their constituents from the lands leased

hereunder and other lands, the right to build and install such tanks, equipment and

structures ancillary thereto to carry on operations for oil and gas, together with the right

to enter thereon at all times and to occupy, possess and use so much of said premises

as is necessary and convenient for all purposes described herein * * *.”

       {¶3} The lease agreement covered 275.67 acres owned by Bilbaran Farm

located in Brown Township, Knox County, Ohio. The lease did not specify the amount

of wells to be located on the property. The lease agreement contained a provision that

if the operation for a well was not commenced on the premises within 12 months from

the date of the lease, the lease would terminate as to both parties unless Professional

Petroleum Services paid to Bilbaran Farm a certain sum of money. The payment would

operate as a rental and deferral of commencement of operations.
Knox County, Case No.12-CA-21                                                        3


      {¶4} The lease agreement also provided: “This lease and all its terms,

conditions and stipulations shall extend to and be binding on all heirs, successors and

assigns of Lessor or Lessee.        This lease contains all of the agreements and

understandings of the Lessor and the Lessee respecting the subject matter hereof and

no implied covenants or obligations, or verbal representations or promises, have been

made or relied upon by Lessor or Lessee supplementing or modifying this lease or as

an inducement thereto.”

      {¶5} On December 4, 2007, Professional Petroleum Services assigned its

interest in the Bilbaran Farm oil and gas lease to Defendant-Appellee Bakerwell, Inc.

Bakerwell, Inc. then assigned a percentage of its interest in the Bilbaran Farm oil and

gas lease to Defendant-Appellee Crescent Oil & Gas, LLC.

      {¶6} On August 9, 2012, Bilbaran Farm filed a complaint in the Knox County

Court of Common Pleas against Bakerwell, Inc. and Crescent Oil & Gas, LLC. The

complaint was entitled, “Complaint to Quiet Title, Declaratory Judgment and Partial

Cancellation of Oil and Gas Lease.”      Attached to the complaint were four exhibits,

including the oil and gas lease agreement, assignments, and deed to the Bilbaran Farm

property. Bilbaran Farm alleged in its complaint:

      4. The grantee of said lease developed said real estate to the extent of

      drilling and completing three oil and gas wells into the Clinton formation

      under the surface of said described real estate before the assignments

      above referred to.

      5. Said wells are located in the Township of Brown in the County of Knox

      and in the State of Ohio.
Knox County, Case No.12-CA-21                                                         4


     ***

     7. There has been no further development of the real estate subject to the

     lease although Plaintiff has made contact with the Defendants concerning

     the same and has received no response thereto.

     8. Defendants have breached their duty under said lease to develop the

     rest of the undeveloped portion of the lease and have thwarted the

     purpose of the lease and Plaintiff has been injured as a direct result of

     said breach.

     9. Defendants should not be able to prevent further development of the

     leased premises, if they have not and are not going to further develop said

     leased premises as it would be inequitable and unfair to Plaintiff for

     Defendant to be able to do so.

     10. The purpose of Plaintiff in granting said lease to the assignor thereof

     to Defendants was to have the leased premises fully developed for

     extraction of all oil and/or gas from said premises.

     11. If Defendants are not going to further develop the leased premises, it

     should be cancelled as to the undeveloped portion thereof, if Defendants

     do not voluntarily surrender the lease to Plaintiff as it pertains to the

     undeveloped portion of the premises so leased.

     WHEREFORE, Plaintiff demands that the undeveloped portion of the

     within oil and gas lease be declared void and forfeited with Plaintiff’s title

     to said real estate being quieted as to any of said undeveloped portion

     thereof with respect to any interest of defendants therein * * *.
Knox County, Case No.12-CA-21                                                           5


      {¶7} In lieu of filing an answer to the complaint, Bakerwell and Crescent Oil &

Gas filed a Motion to Dismiss pursuant to Civ.R. 12(B)(6). The companies argued that

Bilbaran Farm’s complaint failed to state a claim upon which relief could be granted

because the terms of the lease agreement, upon which Bilbaran Farm’s complaint was

based, did not contain any express or implied duty to further develop the land. Bilbaran

Farm responded, arguing that Bakerwell and Crescent Oil & Gas have left undeveloped

215.67 acres and have not extracted all the oil and gas from the property, as was

granted by the oil and gas lease.

      {¶8} On October 25, 2012, the trial court granted the motion to dismiss by

Bakerwell and Crescent Oil & Gas. It is from this decision Bilbaran Farm now appeals.

                              ASSIGNMENT OF ERROR

      {¶9} Bilbaran Farm, Inc. raises one Assignment of Error:

      {¶10} “THE TRIAL COURT ERRED IN ITS JUDGMENT OF OCTOBER 25,

2012 BY DISMISSING THE COMPLAINT IN THE TRIAL COURT FOR RELIEF TO

QUIET TITLE, DECLARATORY JUDGMENT AND PARTIAL CANCELLATION OF OIL

AND GAS LEASE. (DOCKET #1)”

                                       ANALYSIS

      {¶11} Bilbaran Farm argues the trial court erred in granting the motion to dismiss

pursuant to Civ.R. 12(B)(6). We disagree.

                                    Standard of Review

      {¶12} A Civ.R. 12(B)(6) dismissal for failure to state a claim upon which relief

can be granted is reviewed de novo since it involves a pure legal issue. Perrysburg

Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5, citing
Knox County, Case No.12-CA-21                                                               6

Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d

1136, ¶ 4-5.

       {¶13} In order to affirm the trial court's dismissal for failure to state a claim, it

must appear beyond doubt that appellant can prove no set of facts warranting the relief

requested. State ex rel. Findlay Publishing Co. v. Schroeder, 76 Ohio St.3d 580, 581,

669 N.E.2d 835 (1996), citing State ex rel. Seikbert v. Wilkinson, 69 Ohio St.3d 489,

490, 633 N.E.2d 1128 (1994). In conducting this review, the court must presume all the

factual allegations in the complaint are true and make all reasonable inferences in favor

of the nonmovant. Id.

       {¶14} Where documents are attached or incorporated into the complaint, the

face of the complaint to be evaluated includes those documents. See Civ.R. 10(C).

“Material incorporated in a complaint may be considered part of the complaint for

purposes of determining a Civ.R. 12(B)(6) motion to dismiss.” State ex rel. Crabtree v.

Franklin Cty. Bd. of Health, 77 Ohio St.3d 247, 249, fn. 1, 673 N.E.2d 1281 (1997). “If

the plaintiff decides to attach documents to his complaint, which he claims establish his

case, such documents can be used to his detriment to dismiss the case if they along

with the complaint itself establish a failure to state a claim.” Adlaka v. Giannini, 7th Dist.

No. 05 MA 105, 2006-Ohio-4611, ¶ 34 citing Aleman v. Ohio Adult Parole Auth., 4th

Dist. No. 94CA17, 1995 WL 257833 (Apr. 24, 1995).

               Oil and Gas Lease Agreement and the Duty to Further Develop

       {¶15} With respect to oil and gas leases, the Supreme Court of Ohio in Harris v.

Ohio Oil Co., 57 Ohio St. 118, 129, 48 N.E. 502 (1897) stated: “The rights and remedies

of the parties to an oil or gas lease must be determined by the terms of the written
Knox County, Case No.12-CA-21                                                          7


instrument, and the law applicable to one form of lease may not be, and generally is not,

applicable to another and different form. Such leases are contracts, and the terms of

the contract with the law applicable to such terms must govern the rights and remedies

of the parties.” Moore v. Adams, 5th Dist. No. 2007AP090066, 2008-Ohio-5953, ¶ 21.

      {¶16} The Supreme Court of Ohio has “long adhered to the general principal

that absent express provisions to the contrary, a mineral lease includes an implied

covenant to reasonably develop the land.” Ionno v. Glen-Gery Corp., 2 Ohio St.3d 131,

132, 443 N.E.2d 504 (1983) citing Beer v. Griffith, 61 Ohio St.2d 119, 399 N.E.2d 1227

(1980). The Court clarified:

      Certainly the only material inducement which influences a lessor to grant a

      lessee the power to exercise extensive rights upon his land is his

      expectation of receiving *** royalties based upon the amount of minerals

      derived from the land. *** Given the nature of these [royalties], there is

      manifestly an implied covenant on the part of the lessees that they will

      work the land with ordinary diligence, not simply for their own advantage

      and profit, but also so that the lessors may secure the actual consideration

      for the lease, i.e., the production of minerals and the payment of a royalty

      on the minerals mined.

Bushman v. MFC Drilling Inc., 9th Dist. No. 2403-M, 1995 WL 434409 (July 19, 1995)

citing Ionno at 133-134.

      {¶17} The claims Bilbaran Farm raises in its complaint is that while three wells

are operating on the property, a portion of the property remains undeveloped, defeating

the purpose of the lease. A similar factual scenario was raised in the case of Bushman
Knox County, Case No.12-CA-21                                                         8

v. MFC Drilling Inc., 9th Dist. No. 2403-M, 1995 WL 434409 (July 19, 1995), appeal not

accepted, 74 Ohio St.3d 1484, 657 N.E.2d 1377 (1995). In Bushman v. MFC Drilling

Inc., Bushman and MFC Drilling, Inc. executed an oil and gas lease that gave MFC

Drilling exclusive right to explore, drill, produce and market gas and oil found beneath

the surface of a 27 acre tract of Bushman’s land. Id. at *1. MFC Drilling placed one

well into operation; however, 17 acres of Bushman’s property remained undeveloped

and Bushman collected no royalties on the undeveloped property. Bushman filed a

complaint in the Medina Court of Common Pleas seeking damages for MFC Drilling’s

breach of an implied covenant under the lease to develop Bushman’s property and for

termination of the lease. Id.

       {¶18} The trial court granted summary judgment in favor of MFC Drilling based

on the terms of the oil and gas lease. Id. Bushman appealed and the Ninth District

Court of Appeals affirmed. As basis for the affirmance, the court of appeals considered

the implied covenant to reasonably develop the land and the express terms of the

Bushman oil and gas lease. The court stated:

              While gas and oil leases contain an implied covenant requiring the

       lessee to reasonably develop the leased property, Ohio courts have

       consistently enforced express provisions in such leases that disclaim the

       implied covenant. Taylor v. MFC Drilling, Inc. (Feb. 27, 1995), Hocking

       App. No. 94CA14, unreported; Smith v. N.E. Natural Gas (Sept. 30, 1986),

       Tuscarawas App. No. 86AP030016, unreported; Holonko v. Collins (June

       29, 1988), Mahoning App. No. 87CA120, unreported. As stated by the

       Ohio Supreme Court in Harris, “[t]he implied covenant arises only when
Knox County, Case No.12-CA-21                                                       9

     the lease is silent on the subject.” Id. at 128. The gas and oil lease

     executed by Bushman and MFC contains the following language:

              “It is mutually agreed that this instrument contains and expresses

     all of the agreements and understandings of the parties in regard to the

     subject matter thereof, and no implied covenant, agreement or obligation

     shall be read into this agreement or imposed upon the parties or either of

     them.”

              Bushman argues that public policy prohibits a general disclaimer of

     the implied covenant to develop the leased property. In support of this

     position, Bushman points out that the gas and oil leases in Smith and

     Holonko contained provisions granting the lessee discretion to determine

     whether to commence drilling operations in addition to a general

     disclaimer of implied covenants.     Bushman goes on to argue that the

     general disclaimer of implied covenants found in his lease agreement with

     MFC is ineffective in removing the implied covenant to reasonably develop

     in the absence of specific language addressing that covenant. We agree

     with the Taylor court, which held that a general disclaimer of implied

     covenants -- identical to the disclaimer contained in the lease agreement

     under review -- effectively disclaimed the implied covenant to reasonably

     develop the leased property.      There is no authority, neither statutorily

     mandated nor judicially created, removing disclaimer of implied covenants

     in gas and oil leases from the operation of general contract law. Further,

     upon review of Bushman's arguments, we are unable to conclude that
Knox County, Case No.12-CA-21                                                         10


        public policy requires anything more than a general waiver of implied

        covenants.

Id. at *2.

        {¶19} The Bushman decision is in accord with this Court’s decision in Smith v.

North East Natural Gas Co., 5th Dist. No. 86 AP 030016, 1986 WL 11337 (Sept. 30,

1986). The oil and gas lease in Smith contained a provision as to the enforceability of

implied covenants: “It is mutually agreed that this instrument contains and expresses all

of the agreements and understandings of the parties in regard to the subject matter

thereof, and no implied covenant, agreement or obligation shall be read into this

agreement or imposed upon the parties or either of them. (Emphasis added).” Id. at *1.

        {¶20} We held:

              Judge Rutherford of this court in the Coshocton County Court of

        Appeals case, Lake v. Ohio Fuel Gas Co. (1965), 2 Ohio App.2d 227,

        stated at 231:

              ... as stated by the Supreme Court of Ohio in the case of Harris v.

        Ohio Oil Co., 57 Ohio St. 118 at page 129 of the opinion:

              “The rights and remedies of the parties to an oil or gas lease, must

        be determined by the terms of the written instrument, and the law

        applicable to one form of lease may not be, and generally is not,

        applicable to another in different form. Such leases are contracts, and the

        terms of the contract with the law applicable to such terms, must govern

        the rights and remedies of the parties.”
Knox County, Case No.12-CA-21                                                           11


                We conclude that in the case at bar under the terms of the lease-

       the written contract of the parties-the trial court properly found that Lessee

       did not violate the express covenant to 1) pay royalties, or 2) to find oil or

       gas or their constituents on the premises in paying quantities in the

       judgment of the Lessee; nor did the Lessee violate any implied covenant

       since the express written language of the contract provided that “no

       implied covenant, agreement or obligation shall be read into this

       agreement or imposed upon the parties or either of them.”

Smith, at *2.

       {¶21} In the present case, the oil and gas lease attached to Bilbaran Farm’s

complaint contains the following provision: “This lease and all its terms, conditions and

stipulations shall extend to and be binding on all heirs, successors and assigns of

Lessor or Lessee. This lease contains all of the agreements and understandings of the

Lessor and the Lessee respecting the subject matter hereof and no implied covenants

or obligations, or verbal representations or promises, have been made or relied upon by

Lessor or Lessee supplementing or modifying this lease or as an inducement thereto.”

Based on the interpretation of Bushman and Smith, the language of this provision

disclaims the implied covenant to reasonably develop the property.          Bilbaran Farm

argues the failure to further develop the property is unfair and inequitable. Similar to

Bushman’s public policy argument, this is waived by the express disclaimer against an

implied covenant to develop the property. As stated in Bushman, “[t]he mere fact that

the terms of an executed contract turn out to be unfavorable to one of the parties does

not override the fundamental concept in Ohio law that parties enjoy ‘freedom of contract’
Knox County, Case No.12-CA-21                                                       12

and are bound to the contractual relationship that they create. See Royal Indemn. Co:

v. Baker Protective Services, Inc. (1986), 33 Ohio App.3d 184, 186.” Bushman v. MFC

Drilling, 1995 WL 434409, at *3.

       {¶22} Upon our de novo review of the motion to dismiss, utilizing an analysis

most favorable to the Bilbaran Farm, we find the authority of Bushman and Smith

demonstrates Bilbaran Farm can present no facts warranting relief. The trial court did

not err in granting the motion to dismiss of Defendants-Appellees Bakerwell, Inc. and

Crescent Oil & Gas, LLC.

       {¶23} The sole Assignment of Error of Plaintiff-Appellant Bilbaran Farm, Inc. is

overruled.

                                    CONCLUSION

       {¶17} The judgment of the Knox County Court of Common Pleas is affirmed.

By: Delaney, J.,

Wise, P.J., and

Baldwin, J., concur.



                                       HON. PATRICIA A. DELANEY




                                       HON. JOHN W. WISE



                                       HON. CRAIG R. BALDWIN


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