Rule 23 order filed NO. 5-06-0321
April 2, 2007;
Motion to publish granted IN THE
May 14, 2007.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
GREG NYE, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Crawford County.
)
v. ) No. 05-CH-15
)
EVA LOVENE LEAVELL and STANLEY )
LEAVELL, )
)
Defendants-Appellants, )
)
and )
)
BI-PETRO, INC., and Unknown Owners, ) Honorable
) David M. Correll,
Defendants. ) Judge, presiding.
________________________________________________________________________
JUSTICE SPOM ER delivered the opinion of the court:
Defendants Eva Lovene Leavell and Stanley Leavell (the Leavells) appeal an order
of the circuit court of Crawford County granting a summary judgment to the plaintiff, Greg
Nye, on his complaint in chancery for the cancellation o f his oil and gas lease with the
Leavells. For the reasons that follow, we reverse and remand for further proceedings not
inconsistent with this order.
The facts necessary to our disposition of this appeal are derived from the materials
presented in support of the plaintiff's motion for a summary judgment, and they are as
follows. On or about March 20, 1981, Charles Stantz, as lessor, executed an oil and gas
lease in favor of Daniel R. Leavell, as lessee, on lands in Crawford County owned by Mr.
Stantz. The plaintiff in this case inherited those lands and is now the lessor. By various
assignments, defendant Eva Lovene Leavell is now the operator of the lease, and defendant
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Stanley Leavell (Stanley), who is the son of Daniel R. and Eva Lovene Leavell, now owns
a working interest in the lease. Production of oil from the wells encompassed by the lease
ceased in 2001. The Leavells claim that production ceased because the State of Illinois,
through the Department of Natural Resources, prohibited the Leavells from operating the
wells as a part of a larger prohibition related to abandonment proceedings pertaining to other
wells owned by the Leavells, but not encompassed by the lease with the plaintiff. The
Leavells claim the prohibition was pursued illegally, without proper notice to the Leavells.
The Leavells have pursued litigation against the State in a number of cases in an effort to
reverse the administrative order prohibiting the Leavells from operating the wells. See, e.g.,
In re Abandonment of W ells Located in Illinois by Eva Lovene Leavell, 343 Ill. App. 3d 303
(2003). These cases remain pending.
On February 28, 2005, the plaintiff filed in chancery the complaint to cancel the oil
and gas lease that is the subject of this appeal. In his complaint, in four separate counts, the
plaintiff contended that the lease in question was (1) forfeited by the express terms of the
lease, (2) forfeited by the implied terms of the lease, (3) forfeited pursuant to section 2 of the
Mineral Lease Release of Record Act (the Act) (765 ILCS 510/2 (West 2004)), and/or (4)
abandoned. On M ay 31, 2005, the Leavells, by attorney Christopher Heid, answered the
plaintiff's complaint, denying in pertinent part the allegations made therein. On February 14,
2006, following discovery and other procedural wrangling by the parties not pertinent to this
appeal, the plaintiff filed a motion for a summary judgment against the Leavells, and in
support thereof he filed a memorandum of law, a transcript of the discovery deposition of
Stanley, and an affidavit executed by the plaintiff. In the motion for a summary judgment,
the plaintiff contended that in his discovery deposition Stanley "admitted that there had been
no oil produced, nor production activities, upon the subject lease, since the year 2001," that
no material fact was in dispute, and that the plaintiff was entitled to a judgment in his favor
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on all four counts of the complaint. In his memorandum in support of the motion for a
summary judgment, the plaintiff argued that the "uncontroverted evidence" filed with the
motion showed that the Leavells did not use "reasonable diligence" to continue the
production of oil, because even though the Leavells claimed they were prohibited by the
State of Illinois from operating the wells encompassed by the lease, Stanley "admitted [in his
discovery deposition] that he could have become the operator of the lease and bonded the
wells[] or could have employed a contract operator to do so, but in both instances declined."
The plaintiff also requested "all attorney's fees and court costs" pursuant to section 2 of the
Act. No evidentiary materials were attached to the motion describing the attorney fees and
costs allegedly incurred as a result of the proceedings below. On February 23, 2006, the
plaintiff's motion for a summary judgment was set for a hearing on March 14, 2006. The
defendants did not respond in writing to the motion for a summary judgment.
On March 14, 2006, for reasons that are disputed and that in any case are not germane
to our disposition of this appeal, attorney Heid, who at the time still represented the Leavells,
failed to appear at the hearing, as did the Leavells. Apparently, the hearing proceeded in the
absence of attorney Heid and the Leavells, although no transcript of the hearing exists, nor
does a bystander's report. On March 20, 2006, the circuit court granted the plaintiff's motion
for a summary judgment in a written order, finding for the plaintiff on all four counts of the
complaint. The extent of the court's legal analysis supporting its decision was that the lease
in question had expired "due to lack of production and lack of due diligence" by the Leavells,
"in that no production of oil or gas has been had from said lease since the year 2001." The
court also ordered the Leavells to pay $5,175 in attorney fees and $624.20 in court costs,
which the court, without further explanation or analysis, deemed reasonable and "necessarily
incurred" by the plaintiff, despite the facts that, as explained above, no evidentiary materials
were attached to the motion for a summary judgment describing the attorney fees and costs
3
allegedly incurred as a result of the proceedings below and no evidentiary materials of that
nature are included elsewhere in the record. On April 5, 2006, the Leavells, by attorney
Heid, filed a motion to reconsider the summary judgment. On April 18, 2006, the Leavells,
by the attorney they hired to replace Heid–whom the Leavells had discharged–filed a motion
to vacate and for a reconsideration. On June 20, 2006, the circuit court held a hearing on
both motions and denied them, refusing to allow the Leavells' new attorney to argue the
merits of the summary judgment motion. The Leavells filed a timely notice of appeal.
On appeal, the Leavells raise six arguments, which we renumber and restate as
follows: (1) a summary judgment was not proper because there was a genuine issue of
material fact regarding whether the Leavells could have continued production from the wells
encompassed by the lease or were excused from doing so because production was enjoined
by the State of Illinois, (2) a summary judgment was not proper because the plaintiff did not
satisfy his burden of proof to show appropriate nonproduction under the lease, (3) an award
of attorney fees and costs was not justified pursuant to the Act, (4) the amount of attorney
fees and costs was not supported by the record, and no notice was given that attorney fees
and costs would be adjudicated at the hearing on the motion for a summary judgment, (5) the
due process rights of the Leavells were violated when the hearing went forward without the
Leavells, whose attorney was allegedly ill, having an adequate opportunity to be heard, and
(6) the due process rights of the Leavells were violated when the hearing went forward
without the Leavells having adequate notice, because the clerk of court had informed the
secretary for the attorney for the Leavells that the hearing had been cancelled and would be
rescheduled.
With regard to the Leavells' first argument on appeal, we agree that a summary
judgment was not proper because there was a genuine issue of material fact regarding
whether the Leavells could have continued production from the wells encompassed by the
4
lease or were excused from doing so because production was enjoined by the State of
Illinois, and we reverse the circuit court's order on that basis. A summary judgment is a
drastic means of disposing of litigation and is only to be granted when pleadings,
depositions, admissions on file, and affidavits, if any, establish that there is no genuine issue
of any material fact and that the moving party is entitled to a judgment as a matter of law.
Morietta v. Reese Construction Co., 347 Ill. App. 3d 1077, 1080 (2004). The review of a
grant of a summary judgment is de novo. Morietta, 347 Ill. App. 3d at 1080. In reviewing
a summary judgment, this court construes evidentiary material strictly against the moving
party and in the light most favorable to the nonmoving party. Morietta, 347 Ill. App. 3d at
1080. A genuine issue of material fact exists where there is a dispute on a material fact or
where the facts are undisputed but reasonable minds might differ in drawing inferences from
the facts. Morietta, 347 Ill. App. 3d at 1080.
In the case at bar, implicit in the circuit court's award of a summary judgment to the
plaintiff because the lease in question had expired "due to lack of production and lack of due
diligence" by the Leavells "in that no production of oil or gas has been had from said lease
since the year 2001" is the finding that no genuine issue of material fact existed regarding
whether (1) no production of oil or gas has been had from the lease since the year 2001 and
(2) the Leavells exercised "due diligence" in their management of the wells encompassed by
the lease. Even if we assume, without deciding, that no production of oil or gas has been had
from the lease since the year 2001–a point that on appeal the Leavells contend has not yet
adequately been proven by the plaintiff and that accordingly provides another basis for a
reversal of the summary judgment–we still conclude that when the evidentiary material
presented by the plaintiff thus far is construed strictly against the plaintiff, as the moving
party, and in the light most favorable to the Leavells, as the nonmoving party, a genuine issue
of material fact exists regarding whether the Leavells exercised "due diligence" in their
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management of the wells encompassed by the lease and, thus, whether the Leavells could
have continued production from the wells encompassed by the lease or were excused from
doing so because production was enjoined by the State of Illinois.
In support of his motion for a summary judgment, the plaintiff argued that the
Leavells did not use "reasonable diligence" to continue production of oil from the lease,
because even though the Leavells claimed they were prohibited by the State of Illinois from
operating the wells encompassed by the lease, Stanley "admitted [in his discovery deposition]
that he could have become the operator of the lease and bonded the wells[] or could have
employed a contract operator to do so, but in both instances declined." Although the circuit
court did not explain the basis for its conclusions, presumably the court relied upon this
argument in finding for the plaintiff, for it is the only argument that could remotely support
a summary judgment on this point. Significantly, however, an objective reading of Stanley's
deposition testimony does not support a summary judgment, either on the basis of a lack of
"due diligence" or a lack of "reasonable diligence" or under the express or implied terms of
the lease agreement itself. First, Stanley did not "admit" that he could have become the
operator of the lease and bonded the wells, nor did he "admit" that he could have employed
a contract operator to do so. Second, even if he had made those admissions, no showing was
made by the plaintiff that the failure of the Leavells to transfer the operation of the lease to
Stanley or to employ a contract operator, had they been able to do so, would have constituted
a lack of "due diligence" or "reasonable diligence" or would have violated the express or
implied terms of the lease agreement.
In his deposition, Stanley was asked if he had made any attempts to locate a substitute
operator to operate the lease. He answered that he had not, because the State had declared
the wells on the lease "abandoned." In response to a follow-up question on the subject, he
stated that he believed it would have been a violation of the Illinois Administrative Code to
6
seek another party to operate the lease because he believed the declaration by the State that
the wells were "abandoned" obligated the Leavells to completely cease production from the
wells "until the abandonment proceedings were decided." Stanley reiterated this position
later in the deposition, when he was asked yet again a question he had already repeatedly
answered: he was asked if he had looked for an alternative way to operate the lease, and he
responded that it was not his responsibility to look for an alternative because the future of
the lease "was set in stone" by the State's declaration of abandonment. The plaintiff's
contention to the contrary notwithstanding, this deposition testimony is far from an
admission by Stanley that he could have employed a contract operator to operate the lease.
To the contrary, Stanley repeatedly testified that he could not have employed a contract
operator to operate the lease. With regard to whether he could have become the operator of
the lease and bonded the wells himself, Stanley testified that although the State had given
him the option to operate the lease himself if he posted a $100,000 bond, he was both
"unable" and "unwilling" to do that. He also testified that he would not have automatically
been allowed to assume the lease but would first have to be "approved as an operator." This
testimony, too, can hardly be characterized as an admission by Stanley that he could have
become the operator of the lease and bonded the wells himself. To the contrary, Stanley
testified unequivocally that he was "unable" to post a bond to become the operator of the
lease himself.
Accordingly, with regard to the two key points–that Stanley Leavell "admitted" in his
discovery deposition that he could have become the operator of the lease and bonded the
wells or that he could have employed a contract operator to do so–that appear to underlie the
circuit court's otherwise unexplained conclusion that the Leavells failed to exercise "due
diligence" in their management of the wells encompassed by the lease, the evidentiary
material presented by the plaintiff thus far, construed strictly against the plaintiff, as the
7
moving party, and in the light most favorable to the Leavells, as the nonmoving party,
demonstrates that a genuine issue of material fact exists regarding those points. Whether the
Leavells could have continued production from the wells encompassed by the lease or were
excused from doing so because production was enjoined by the State of Illinois is a question
of fact that is pivotal to the plaintiff's complaint for the cancellation of his oil and gas lease
with the Leavells, as is the question of what steps the Leavells were required to take–and
whether they took those steps–to satisfy the appropriate legal standard in this case, whether,
as the circuit court will need to determine on remand, that is a "due diligence" standard, a
"reasonable diligence" standard, or a standard defined by the express or implied terms of the
lease agreement. Without definitive answers to these questions, the circuit court cannot
determine whether the lease has been forfeited or abandoned. At this point in the litigation,
there are no definitive answers to these disputed questions of fact, and the circuit court erred
in granting a summary judgment for the plaintiff.
Because we reverse the circuit court's order on the basis of the Leavells' first argument
on appeal, we need not consider the remainder of the Leavells' arguments. With regard to
attorney fees and costs, however, we note that we pass no judgment on whether those fees
or costs will be available at some point in this litigation; our ruling is only that a summary
judgment was not appropriate and that accordingly the award of attorney fees and costs was
not appropriate either at this stage of the litigation.
For the foregoing reasons, we reverse the order of the circuit court of Crawford
County granting a summary judgment to the plaintiff, and we remand for further proceedings
not inconsistent with this order.
Reversed; cause remanded.
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GOLDENHERSH and CHAPMAN, JJ., concur.
9
NO. 5-06-0321
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________________
GREG NYE, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Crawford County.
)
v. ) No. 05-CH-15
)
EVA LOVENE LEAVELL and STANLEY )
LEAVELL, )
)
Defendants-Appellants, )
)
and )
)
BI-PETRO, INC., and Unknown Owners, ) Honorable
) David M. Correll,
Defendants. ) Judge, presiding.
___________________________________________________________________________________
Rule 23 Order Filed: April 2, 2007
Motion to Publish Granted: May 14, 2007
Opinion Filed: May 14, 2007
___________________________________________________________________________________
Justices: Honorable Stephen L. Spomer, J.
Honorable Richard P. Goldenhersh, J., and
Honorable Melissa A. Chapman, J.,
Concur
___________________________________________________________________________________
Attorneys Thomas G. M aag, Wendler Law, P.C., 900 Hillsboro, Suite 10, Edwardsville, IL
for 62025 (attorney for Eva Lovene Leavell and Stanley Leavell)
Appellants
David Foreman, 204 E. Main, Salem, IL 62881 (attorney for Bi-Petro, Inc.)
___________________________________________________________________________________
Attorneys Christopher L. Weber, Frank J. Weber, Cox, Phillips, Weber, Tedford & Heap, P.C.,
for 216 South Cross Street, P.O. Box 250, Robinson, IL 62454
Appellee
___________________________________________________________________________________