St. Croix, Ltd. v. Damitz ( 2011 )


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  • [Cite as St. Croix, Ltd. v. Damitz, 2011-Ohio-6242.]
    STATE OF OHIO                      )                        IN THE COURT OF APPEALS
    )ss:                     NINTH JUDICIAL DISTRICT
    COUNTY OF SUMMIT                   )
    ST. CROIX, LTD.                                             C.A. Nos.   25629
    25630
    Appellant
    v.
    APPEAL FROM JUDGMENT
    KATHLEEN DAMITZ, et al.                                     ENTERED IN THE
    COURT OF COMMON PLEAS
    Appellees                                           COUNTY OF SUMMIT, OHIO
    CASE No.   CV 2008-06-4596
    DECISION AND JOURNAL ENTRY
    Dated: December 7, 2011
    CARR, Judge.
    {¶1}     Appellant, St. Croix, Ltd., appeals the judgment of the Summit County Court of
    Common Pleas. This Court reverses.
    I.
    {¶2}     This case arises out of a dispute between a landowner and a gas and oil recovery
    business. Appellee, Kathleen Damitz, owns real property which is the subject of an oil and gas
    lease held by St. Croix. In 1991, when St. Croix had two wells on her property, Ms. Damitz sued
    to enjoin St. Croix from placing any additional wells on her property. In 1992, the parties
    entered into a settlement agreement in which St. Croix was permitted to drill a third well, but no
    more. Soon thereafter, St. Croix drilled its third well. In 2008, St. Croix obtained a drilling
    permit with the intent of utilizing one of the existing wellheads on Ms. Damitz’ property to
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    conduct what it called “secondary recovery” operations, whereby it would plug back the existing
    well to a certain depth and drill in another direction from the point of the plug back. St. Croix
    believed that it was permitted to do so pursuant to the terms of the oil and gas lease and not
    prohibited from doing so pursuant to the terms of the parties’ settlement agreement.
    {¶3}    On June 26, 2008, Ms. Damitz filed a complaint in case number CV 2008-06-
    4596 against St. Croix, seeking declaratory judgment, a preliminary and permanent injunction,
    and alleging a claim for breach of contract in regard to the parties’ 1992 settlement agreement.
    Ms. Damitz also filed a motion for a preliminary injunction. St. Croix filed a motion to dismiss
    the complaint pursuant to Civ.R. 12(B)(6). Ms. Damitz opposed the motion to dismiss. The trial
    court never issued a formal ruling on the motion to dismiss. On September 4, 2008, the parties
    filed a “stipulation,” agreeing that St. Croix would not commence any physical activities in
    relation to its proposed directional drilling without thirty days’ written notice to Ms. Damitz.
    The parties further agreed that Ms. Damitz’ motion for injunctive relief would be held in
    abeyance pending St. Croix’ notice of intent to commence secondary operations at the existing
    wellhead. On December 23, 2008, the trial court sua sponte ordered that case number CV 2008-
    06-4596 be placed on the inactive docket.
    {¶4}    On October 2, 2009, St. Croix filed a complaint in case number CV 2009-10-7229
    against Ms. Damitz and her husband David Sirlouis (collectively “Damitz”), alleging two claims
    for declaratory judgment, one claim for breach of contract in regard to the oil and gas lease, and
    one claim for fraud. Damitz filed an answer and six counterclaims which reiterated her claims in
    her original complaint in addition to adding other claims.          Damitz later amended her
    counterclaims, alleging two claims for declaratory judgment, one claim for preliminary and
    3
    permanent injunctive relief, one claim for breach of contract in regard to the parties’ 1992
    settlement agreement, and two alternative claims for declaratory judgment.
    {¶5}     St. Croix moved to transfer case number CV 2009-10-7229 to the judge to whom
    the 2008 case had been assigned. St. Croix erroneously asserted that case number CV 2008-06-
    4596 had been voluntarily dismissed and that the 2009 case constituted a refiled action.
    Recognizing that Damitz had not voluntarily dismissed her 2008 complaint, the trial court
    instead ordered that case number CV 2009-10-7229 be consolidated with case number CV 2008-
    06-4596 and that all further documents be filed under the 2008 case number. The trial court
    terminated the 2009 case from the civil docket.
    {¶6}     The parties filed competing motions for summary judgment.            St. Croix
    purportedly moved for summary judgment on all four of its claims and all six of Damitz’
    counterclaims. St. Croix failed, however, to make any argument in regard to Damitz’ fourth
    counterclaim. Damitz moved for summary judgment on all four counts in St. Croix’ complaint
    but only counts one, two, and five of Damitz’ six counterclaims. No party moved for summary
    judgment, or further acknowledged, the three claims in Ms. Damitz’ original complaint. On
    September 15, 2010, the trial court issued an order ruling on the competing motions for summary
    judgment and purporting to dispose of all pending claims.         The trial court included the
    appropriate Civ.R. 54(B) language, noting that there was no reason for delay. St. Croix appealed
    that order, filing notices of appeal in regard to both case numbers CV 2008-06-4596 and CV
    2009-10-7229.
    II.
    ASSIGNMENT OF ERROR
    4
    “THE TRIAL COURT ERRED IN DENYING ST. CROIX’[] MOTION FOR
    SUMMARY JUDGMENT AND ERRED IN GRANTING DAMITZ’[] MOTION
    FOR SUMMARY JUDGMENT.”
    {¶7}    St. Croix argues that the trial court erred in granting summary judgment in favor
    of Damitz on its claims and some of Damitz’ counterclaims. This Court agrees.
    {¶8}    As a preliminary matter, this Court notes some issues of concern regarding the
    management and disposition of this matter below. First, neither the parties nor the trial court
    acknowledge the original complaint filed by Ms. Damitz. There is nothing in the record to
    indicate that Ms. Damitz voluntarily dismissed her complaint or that the trial court entered
    judgment on any of the three claims alleged therein. While Ms. Damitz may have intended to
    abandon those claims in favor of the jointly filed counterclaims, there is nothing in the record to
    reflect that. On the face of the record, Ms. Damitz’ original complaint remains pending, thus
    necessitating disposition of the complaint in this matter.
    {¶9}    Second, although the trial court made an effort to clearly delineate the claims
    enunciated in Damitz’ amended counterclaims, it incorrectly identified the individual counts.
    The trial court separated the first counterclaim into two distinct counts. It then misidentified the
    second counterclaim as count three, the third counterclaim as count four, the fourth counterclaim
    as count five, and the fifth and sixth alternative counterclaims together as count six.
    {¶10} Third, after granting summary judgment in favor of Damitz on St. Croix’ four
    claims, it inexplicably dismissed those claims instead of rendering judgment on the claims in her
    favor. Finally, the trial court purported to issue a ruling as to “all claims for relief in the matter.”
    This Court has already noted that the trial court failed to address the three claims in Ms. Damitz’
    pending original complaint.        More troubling, the trial court dismissed Damitz’ fourth
    counterclaim (misidentified as count five), based on Damitz’ failure to demonstrate the family’s
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    entitlement to the requested declaration of rights. However, Damitz did not move for summary
    judgment on the fourth counterclaim and, therefore, assumed no burden to present evidence on
    the issue. In addition, although St. Croix asserted that it was moving for summary judgment on
    all of Damitz’ counterclaims, it failed to address the fourth counterclaim in its motion. This
    Court has held that “it is axiomatic that the trial court may not grant summary judgment in regard
    to any claim, where a party has not moved for judgment in regard to that claim.” Rowe v.
    Striker, 9th Dist. No. 07CA009296, 2008-Ohio-5928, at ¶7, quoting Urda v. Buckingham,
    Doolittle & Burroughs, 9th Dist. No. 22547, 2005-Ohio-5949, at ¶13. It is, therefore, troubling
    that the trial court disposed of count four of Damitz’ counterclaims.
    {¶11} This Court now addresses St. Croix’ assigned error that the trial court erred in its
    rulings on the competing motions for summary judgment.
    {¶12} This Court reviews an award of summary judgment de novo. Grafton v. Ohio
    Edison Co. (1996), 
    77 Ohio St. 3d 102
    , 105.
    {¶13} Pursuant to Civ.R. 56(C), summary judgment is proper if:
    “(1) No genuine issue as to any material fact remains to be litigated; (2) the
    moving party is entitled to judgment as a matter of law; and (3) it appears from
    the evidence that reasonable minds can come to but one conclusion, and viewing
    such evidence most strongly in favor of the party against whom the motion for
    summary judgment is made, that conclusion is adverse to that party.” Temple v.
    Wean United, Inc. (1977), 
    50 Ohio St. 2d 317
    , 327.
    {¶14} To prevail on a motion for summary judgment, the party moving for summary
    judgment must be able to point to evidentiary materials that 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.
    Dresher v. Burt (1996), 
    75 Ohio St. 3d 280
    , 293. Once a moving party satisfies its burden of
    supporting its motion for summary judgment with sufficient and acceptable evidence pursuant to
    Civ.R. 56(C), Civ.R. 56(E) provides that the non-moving party may not rest upon the mere
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    allegations or denials of the moving party’s pleadings. Rather, the non-moving party has a
    reciprocal burden of responding by setting forth specific facts, demonstrating that a “genuine
    triable issue” exists to be litigated for trial. State ex rel. Zimmerman v. Tompkins (1996), 
    75 Ohio St. 3d 447
    , 449.
    {¶15} Civ.R. 56(C) limits the type of evidence which may be considered in support of a
    motion for summary judgment.         Specifically, the trial court may consider “the pleadings,
    depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence,
    and written stipulations of fact, if any,” and expressly provides that “[n]o evidence or stipulation
    may be considered except as stated in this rule.” Civ.R. 56(C).
    {¶16} In this case, the trial court based its ruling on its assertion that “[t]he parties have
    stipulated to the facts in this matter[.]” The record contains no written stipulation of the parties
    as contemplated by Civ.R. 56(C). Moreover, St. Croix has alleged on appeal, and Damitz has
    not contested, that no stipulations of fact existed in the record. The trial court was not permitted
    to consider evidence outside the scope of the types enumerated in Civ.R. 56(C). See Streb v.
    Cinemark U.S.A., Inc. (Feb. 21, 1995), 10th Dist. No. 94APE04-540. Furthermore, although St.
    Croix argued in its response to Damitz’ motion for summary judgment that Damitz made various
    concessions as to the facts in their motion, Damitz replied that St. Croix was incorrect in that
    assertion. This Court has recognized that “[w]hile reliance on evidentiary material beyond that
    set forth in Civ.R. 56(C) has been allowed, it is only when the opposing party has raised no
    objection.” Green v. B.F. Goodrich Co. (1993), 
    85 Ohio App. 3d 223
    , 228. Here, Damitz
    objected to the trial court’s consideration of the facts as St. Croix argued they had been
    conceded. Accordingly, because there was no written stipulation of facts in the record as
    contemplated by Civ. R. 56(C), the trial court erred in basing its rulings on the competing
    7
    motions for summary judgment on the parties’ alleged stipulation. St. Croix’ assignment of error
    is sustained.
    III.
    {¶17} St. Croix’ sole assignment of error is sustained. The judgment of the Summit
    County Court of Common Pleas is reversed and the cause remanded for further proceedings
    consistent with this opinion.
    Judgment reversed,
    and cause remanded.
    There were reasonable grounds for this appeal.
    We order that a special mandate issue out of this Court, directing the Court of Common
    Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
    of this journal entry shall constitute the mandate, pursuant to App.R. 27.
    Immediately upon the filing hereof, this document shall constitute the journal entry of
    judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
    period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
    instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
    mailing in the docket, pursuant to App.R. 30.
    Costs taxed to Appellees.
    DONNA J. CARR
    FOR THE COURT
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    MOORE, J.
    CONCURS
    BELFANCE, P. J.
    CONCURS, SAYING:
    {¶18} I concur. I write separately because although it is clear that in granting summary
    judgment, the trial court’s analysis centers upon resolving a question of law, its discussion of the
    law appears to be premised upon the notion that the parties had stipulated to all of the material
    facts. Civ.R. 56(C) expressly allows consideration of written stipulations of fact, but does not
    otherwise permit consideration of evidence or stipulations other than stated in the rule. It may be
    that the trial court’s reference to the parties’ stipulation to the facts was actually meant to signal
    that neither party was objecting to the consideration of all of the Civ.R. 56 materials before the
    court. However, since it is not clear, I agree that it is appropriate to remand the matter back to
    the court for further clarification of its ruling.
    APPEARANCES:
    MARK H. LUDWIG, Attorney at Law, for Appellant.
    TERRENCE L. SEEBERGER and NADA G. FADDOUL, Attorneys at Law, for Appellees.
    

Document Info

Docket Number: 25629, 25630

Judges: Carr

Filed Date: 12/7/2011

Precedential Status: Precedential

Modified Date: 3/3/2016