[Cite as Pfalzgraf v. Miley, 2018-Ohio-4392.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                  MONROE COUNTY

                        GEORGE AND MARJORIE PFALZGRAF,

                                         Plaintiffs-Appellees,

                                                   v.

                 JEFF MILEY, DBA MILEY GAS COMPANY, ET AL.,

                                      Defendants-Appellants.


                        OPINION AND JUDGMENT ENTRY
                               Case Nos. 16 MO 0005, 16 MO 0006.


                                       Motion to Certify a Conflict

                                          BEFORE:
                   Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.


                                                JUDGMENT:
                                                  Denied


Atty. Ethan Vessels, Fields, Dehmlow & Vessels, 309 Second Street, Marietta, Ohio
45750, for Plaintiffs-Appellees, and
Atty. William J. Taylor, Atty. Scott D. Eickelberger, Atty. David J. Tarbert, Atty. Ryan H.
Linn, Kincaid, Taylor & Geyer, 50 North Fourth Street, P.O. Box 1030, Zanesville, Ohio
43702, and Atty. J. Kevin West, Atty. Melanie Norris, Atty. Lyle Brown, Steptoe &
Johnson, PLLC, 41 South High Street, Suite 2200, Columbus, Ohio 43215, for
Defendants-Appellants.
                                           Dated:
                                      October 29, 2018
                                                                                       –2–




PER CURIAM.

       {¶1}   Plaintiff-appellee, George Pfalzgraf, has filed two motions both asking this
court to certify a conflict to the Ohio Supreme Court. The first motion alleges a conflict
between this Court’s judgment in Pfalzgraf v. Miley, 7th Dist. No. 16 MO 0005, 2018-
Ohio-2828, and the Third District’s judgment in Mulcahy v. Runyon, 3d Dist. No. 8-81-
18, 1983 WL 7244 (Apr. 20, 1983). The second motion alleges a conflict between this
Court’s judgment in Pfalzgraf, supra, and Siley v. Remmele, 4th Dist. No. 86 CA 6, 1987
WL 7585 (Mar. 6, 1987).
       {¶2}   Appellee asks that we certify the two following questions:

              In an action in which a lessor sues for a declaration that that [sic.]
       an oil and gas lease has terminated of [sic.] for lack of production in
       paying quantities, who bears the burden of proof, the lessor or the lessee?

              In an action to declare that an oil and gas lease has terminated
       under its own terms, can the payment of a royalty be considered as any
       evidence that the well in question produced ‘in paying quantities’?

       {¶3}   App.R. 25 governs motions to certify conflicts. Pursuant to App.R. 25(A),
a motion to certify a conflict

       shall be made in writing no later than ten days after the clerk has both
       mailed to the parties the judgment or order of the court that creates a
       conflict with a judgment or order of another court of appeals and made
       note on the docket of the mailing, as required by App.R. 30(A).

       {¶4}     We entered our judgment in this case on July 12, 2018. The clerk mailed
copies of the judgment that same day. The clerk also made a note of mailing the
judgment that day.
       {¶5}   Thus, appellee had ten days after July 12, 2018 to file his motions to
certify a conflict. Because the tenth day (July 22, 2018) was a Sunday, appellee had


Case Nos. 16 MO 0005, 16 MO 0006
                                                                                    –3–


until July 23, 2018 to file his motions to certify. Appellee did not file his motions to
certify until September 11, 2018, well past the ten-day time limit. Thus, the motions are
clearly untimely.
       {¶6}   Because appellee’s motions are untimely, the motions to certify a conflict
are hereby denied.




JUDGE GENE DONOFRIO, Concurs

JUDGE CHERYL L. WAITE, Concurs

JEDGE CAROL ANN ROBB, Concurs



                                NOTICE TO COUNSEL

This document constitutes a final judgment entry.




Case Nos. 16 MO 0005, 16 MO 0006
