[Cite as Gillig v. Flenner, 2022-Ohio-2635.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
MARK E. GILLIG, et al., : JUDGES:
: Hon. Earle E. Wise, P.J.
Plaintiffs- Appellants : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
JOHN LEE FLENNER, et al., : Case No. 2021 CA 0078
:
Defendants - Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County
Court of Common Pleas, Case No.
2019 CV 914
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 1, 2022
APPEARANCES:
For Plaintiffs-Appellants For Defendants-Appellees
THOMAS D. WHITE JAMES M. RICHARD
KATHERINE M.K. KIMBLE Richard Law Office LLC
ROBERT M. BARGA 127 East Liberty Street, Suite 100
Eques, Inc. PO Box 1207
5989 County Road 77 Wooster, Ohio 44691
Millersburg, Ohio 44654
Richland County, Case No. 2021 CA 0078 2
Baldwin, J.
{¶1} Plaintiffs-appellants Mark E. Gillig and H and M Farms, LLC appeal from
the May 17, 2021 Judgment Entry of the Richland County Court of Common Pleas.
STATEMENT OF THE FACTS AND CASE
{¶2} Both appellants and appellees have the same immediate predecessors in
interest, the Estate of Richard A. Flenner. The subject property was subject to certain oil
and gas leases providing for 300,000 mcf of free gas per year for one residence on the
leased property.
{¶3} In September of 2019, the property was subsequently divided into parcels
and sold at auction. At the auction, appellant Mark E. Gillig, on behalf of appellant H and
M Farms, purchased a 50-acre parcel for the price of $325,000.00. The parcel was part
of a 210-acre farm. The property, which was advertised as having free gas, was placed
in the name of appellant H and M Farms, LLC, who is the current title holder. Such parcel
contains the residence that historically received the free gas. At the auction, appellees
John Lee Flenner, Robert James Flenner, Richard Steven Flenner and Catherine M.
Flenner (hereinafter appellees) purchased an adjacent 160 acres containing a gas meter
from which the natural gas service line runs. Appellants and appellees purchased the
properties “as is” at the time of the public auction. Appellants received a title report
disclosing all easements and leases of record at the time of the public sale and prior to
the closing.
{¶4} After the auction, a dispute arose between the parties as to whether or not
appellants had the right to access a meter on appellees’ parcel to continue to receive free
gas. After the sale but before the closing of the real estate transaction, Gillig’s attorney
Richland County, Case No. 2021 CA 0078 3
sent a letter to John S. Dilts, who served as trustee for the entire farm that was sold at
auction, on October 15, 2019. The letter provided as follows:
The supply line to this parcel crosses parcel 018-14-118-16-000. Any deed
on that parcel must state that my client has an easement over the existing
gas line along with reasonable easement to repair, replace and inspect said
line. Pursuant to our telephone conversation today you indicated there are
3 dwellings that are getting free gas. We believe one of these dwellings
was on a separate parcel and lease. The other parcel has a pay meter. My
client is prepared to close on the property once these concerns are met.
{¶5} Appellant Gillig proceeded to the closing of the real estate transaction on
November 12, 2019 without requiring the language that he requested be included in the
deed.
{¶6} On December 23, 2019, appellants filed a complaint against appellees.
Appellants, in their complaint, alleged that there was a gas line that furnished natural gas
to their property which was located on what was then appellees’ property and that
appellees had notice of the same. Appellants asserted that they had an implied easement
for an existing gas line access and that they had a right-of-way by necessity. Appellants
sought a permanent right-of-way over appellees’ property and an easement over
appellees’ property for maintenance and repair of the existing gas lines. Appellees filed
an answer and counterclaim on February 18, 2020. Appellees set forth a claim for
declaratory relief, a claim to quiet title to appellee’s property and a claim for monetary
damages. Appellees, on the same date, filed a Motion to Dismiss pursuant to Civ.R.
12(B)(7) and 19(B), alleging that appellants had failed to join additional necessary parties.
Appellees alleged as follows:
{¶7} “For cause, Flenner asserts that Gillig have (sic) failed to join additional
parties necessary for adjudication of this matter in violation of Civ.R. 19(B) and Civ.R.
Richland County, Case No. 2021 CA 0078 4
12(B)(7). Flenner submits that the claims of Gillig are intertwined with the action and
conduct of the third parties; i.e. Charles Whatman, Whatman Realtors & Auctioneers, any
other auctioneer utilized by Charles Whatman and Whatman Realtors & Auctioneers at
the public sale held on September 28, 2019, Columbia Gas Transmission Corporation,
its predecessors, successors and assigns, and Mary Margaret Eilenfield, the former
spouse of Mark E. Gillig.”
{¶8} Appellants filed a reply to the counterclaim on March 13, 2020.
{¶9} On March 13, 2020, appellants filed a memorandum in opposition to the
Motion to Dismiss. Appellant, in their memorandum, asserted that their sole prayer for
relief was a demand for a permanent right-of-way over appellees’ property for a gas line
and not a demand for free gas. They asserted that “[t]here was no connection with
Columbia Gas and a gas allotment” and that Columbia Gas was not a necessary party.
{¶10} An oral hearing before a Magistrate was held on March 13, 2020. The
Magistrate, in a Decision filed on December 16, 2020, recommended dismissal of the
complaint. After no objections were filed, the trial court, pursuant to a Judgment Entry
filed on January 22, 2021, approved and adopted the Magistrate’s Decision. No appeal
from such Judgment Entry was taken.
{¶11} Thereafter, on January 29, 2021, appellees filed a Motion for Partial
Summary Judgment on all claims set forth in their counterclaim except for the claim for
damages. Appellees asked for summary judgment on the declaratory relief and quiet title
causes of action to be granted, reserving the damages cause of action for trial. Appellees
specifically argued that a merger-by-deed standard applied to this matter. On March 24,
2021, appellants filed a memorandum in opposition to the motion, arguing that there was
Richland County, Case No. 2021 CA 0078 5
a genuine issue of material fact regarding whether or not there was a covenant running
with the surface rights of the parties for appellants to use and access their free gas.
Appellees filed a reply brief on April 22, 2021.
{¶12} Pursuant to a Judgment Entry filed on May 17, 2021, the trial court granted
the Motion for Partial Summary Judgment. The trial court, in its Judgment Entry, stated
that the remaining claims for damages asserted by appellees in their counterclaim shall
proceed to trial. Appellees, on May 20, 2021, dismissed Count Four of their counterclaim
which sought damages.
{¶13} Appellant then filed a Notice of Appeal from the trial court’s May 17, 2021
Judgment Entry. This Court, via a Judgment Entry filed on July 6, 2021 dismissed the
appeal, finding that there was not a final appealable order since the issue of attorney fees
remained pending.
{¶14} On August 6, 2021, appellants filed a Motion for Summary Judgment on
Attorney’s Fees. Appellees filed a memorandum in opposition to the same on September
9, 2021. Appellants filed a response on September 20, 2021. As memorialized in a
Judgment Entry filed on October 4, 2021, the trial court granted appellants’ Motion for
Summary Judgment on Attorney’s Fees.
{¶15} Appellants now appeal, raising the following assignments of error on
appeal;
{¶16} “I. THE TRIAL COURT ERRED IN FAILING TO RESOLVE THE
EXISTENCE OF A COVENANT RUNNING WITH THE LAND WHILE RULING ON A
MOTION FOR SUMMARY JUDGMENT.”
Richland County, Case No. 2021 CA 0078 6
{¶17} “II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
IN A MATTER IN WHICH THERE WAS GENUINE DISPUTE ON THE ISSUE OF
MATERIAL FACT UPON WHICH THERE WAS NO EXISTING RESOLUTION,
SPECIFICALLY THE EXISTENCE OF A COVENANT FOR FREE GAS RUNNING WITH
THE SURFACE RIGHTS OF APPELLANTS’ PROPERTY, ENCUMBERING THE
ADJACENT APPELLEES’ PROPERTY, WHICH WAS NOT ADDRESSED BY THE
TRIAL COURT.”
I, II
{¶18} Appellants, in their two assignments of error, argue that the trial court erred
in granting partial summary judgment in favor of appellees on their counterclaims. We
disagree.
{¶19} We review cases involving a grant of summary judgment using a de novo
standard of review. Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 2002-
Ohio-2220, 767 N.E.2d 707, ¶ 24. A de novo review requires an independent review of
the trial court's decision without any deference to the trial court's determination. Brown v.
Scioto Cty. Bd. of Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993)
as quoted in State v. Standen, 9th Dist., 173 Ohio App.3d 324, 2007-Ohio-5477, 878
N.E.2d 657, ¶ 7. “Thus, viewing the pleadings in the light most favorable to the [appellant],
we must determine whether [appellee] was entitled to judgment as a matter of law.” Civ.R.
56(C). Troyer v. Janis, 132 Ohio St.3d 229, 2012-Ohio-2406, 971 N.E.2d 862, ¶ 6. “[W]e
afford no deference to the trial court's decision and independently review the record to
determine whether summary judgment is appropriate.” Tornado Techs., Inc. v. Quality
Control Inspection, Inc., 2012-Ohio-3451, 977 N.E.2d 122, ¶ 13 (8th Dist.).
Richland County, Case No. 2021 CA 0078 7
{¶20} Appellants specifically argue that the trial court erred in granting summary
judgment in favor of appellees on their counterclaims because they presented a valid
dispute to the trial court in their memorandum in opposition to the Motion for Partial
Summary Judgment. Appellants contend that there is a genuine issue of material fact
regarding whether there is a covenant running with the surface rights of the parties for
appellants’ free gas use, and how this would encumber appellees’ parcel.
{¶21} Under Ohio law, a free gas clause is construed as a covenant running with
the surface ownership of the leasehold tract unless a contrary intention appears in the
wording of the instrument. Stapleton v. Columbia Gas Transmission Corp., 2 Ohio App.3d
15, 440 N.E.2d 575 (4th Dist.1981).
{¶22} The trial court, in granting summary judgment on appellees’ counterclaims,
implicitly found that no such covenant existed. The trial court found that appellants had
failed to produce any evidence supporting the defenses set forth in their counterclaims.
We agree.
{¶23} Appellants, in their memorandum in opposition to the Motion for Partial
Summary Judgment, attached the affidavit of appellant Mark Gillig. Gillig, in his affidavit,
stated as follows:
{¶24} 1. I have personal knowledge of the matters related to the instant lawsuit.
{¶25} 2. I am one of the Plaintiffs in this action.
{¶26} 3. The attached leases cover the parties’ parcels and are still in full force
and effect. The attached deed is the vesting deed for Plaintiffs’ parcel and contains no
reservation for free gas use or access.
Richland County, Case No. 2021 CA 0078 8
{¶27} 4. The residence on Plaintiffs’’ parcel is the historical residence that
received free gas. The meter that served the residence on Plaintiffs’ parcel is located on
Defendants’ parcel. A service gas line connects the residence with the meter.
{¶28} We concur with appellees that the affidavit does not affirmatively
demonstrate that Gillig is competent to testify to the matters stated in his affidavit.
Moreover, appellants have not submitted any supporting evidence justifying the claims
set forth in his affidavit. No sworn or certified copies of the materials referenced in his
affidavit were attached to or served with the affidavit as required by Civ.R. 56(E) . Civ.R.
56(E)'s requirement that sworn or certified copies of all papers referred to in the affidavit
be attached is satisfied by attaching the papers to the affidavit with a statement contained
in the affidavit that the copies are true and accurate reproductions. State ex rel. Corrigan
v. Seminatore, 66 Ohio St.2d 459, 467, 423 N.E.2d 105 (1981). Appellants did not meet
such requirement.
{¶29} Based on the foregoing, we find that the trial court did not err in granting
partial summary judgment in favor of appellees.
{¶30} Appellants’ two assignments of error are, therefore, overruled.
Richland County, Case No. 2021 CA 0078 9
{¶31} Accordingly, the judgment of the Richland County Court of Common Pleas
is affirmed.
By: Baldwin, J.
Wise, Earle, P.J. and
Delaney, J. concur.
Gillig v. Flenner
Combined Opinion