Facts
- L.L. was convicted of sexually assaulting and endangering the welfare of his niece over a four-year period and sentenced to a total of thirty years in prison [lines="33-36"].
- The jury found L.L. guilty on seven counts of a nine-count indictment, including first-degree aggravated sexual assault and second-degree sexual assault [lines="88-98"].
- L.L. argued that his statement to police should have been suppressed, claiming he was not in a proper mental state due to the effects of anesthesia from a colonoscopy on the day of questioning [lines="126-128"].
- The post-conviction relief (PCR) judge determined L.L.'s application was without merit and denied the claim for a hearing, noting that L.L. did not provide sufficient evidence to support his argument [lines="150-151"].
- On appeal, L.L. challenged the PCR judge's denial of his request for an evidentiary hearing and alleged ineffective assistance of trial and appellate counsel [lines="228-240"].
Issues
- Did the PCR court err in denying L.L.'s motion for post-conviction relief without an evidentiary hearing? [lines="231-235"]
- Was L.L.'s appellate counsel ineffective for failing to argue that L.L. was under anesthesia during his police interrogation? [lines="238-245"]
Holdings
- The court affirmed the PCR judge's decision, concluding that L.L. failed to demonstrate a prima facie case for ineffective assistance of counsel, negating the need for a hearing [lines="281-288"].
- The court found that the claims regarding L.L.'s mental state were adequately addressed during the suppression hearing, thus upholding the efficacy of both trial and appellate counsel's actions [lines="218-227"].
OPINION
*1
[Cite as
Bethel Oil & Gas, L.L.C. v. Redbird Dev., L.L.C.
,
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY BETHEL OIL AND GAS, LLC, :
et al.,
:
Plaintiffs-Appellants, Case No. 23CA5 :
v.
: REDBIRD DEVELOPMENT, LLC,
et al., : DECISION
AND JUDGMENT ENTRY Defendants-Appellees. : ________________________________________________________________
APPEARANCES: J. Zachary Zatezalo, Moundsville, West Virginia, for appellants.
Clay K. Keller and Andrew N. Schock, Akron, Ohio, for appellees
Redbird Development, LLC, Dean Patrick Decker, III, and Hall
Drilling.
Steven B. Silverman, Pittsburgh, Pennsylvania, and Matthew S.
Casto, West Virginia, for appellees Diversified Production LLC,
Nuverra Environmental Solutions, Inc., and Heckmann Water
Resources (cvr), Inc.
Brandon Abshier and Steven A. Change, Columbus, Ohio, for
appellees Deeprock Disposal Solutions, LLC, Deeprock Disposal
Operating LLC, Brian Chavez, and Christyann Heinrich-Chavez.
Chad R. Ziepfel, W. Stuart Dornette, and William E. Braff,
Cincinnati, Ohio, for appellees Tallgrass Operations LLC and K&H
Partners LLC.
Jeffrey L. Finley, Gallipolis, Ohio, for appellees J.D. Drilling
Co. and James E. Diddle.
________________________________________________________________
CIVIL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:10-23-24
ABELE, J. This is an appeal from a Washington County Common
Pleas Court judgment that dismissed the complaint filed by (1)
Bethel Oil and Gas, LLC, (2) Robert E. Lane, and (3) Sandra K.
Lane, plaintiffs below and appellants herein. Appellants assign
the following errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DISMISSING THE PLAINTIFFS’ CASE ON THE PLEADINGS WHERE THE PLAINTIFFS CREDIBLY ALLEGED THAT THE DEFENDANTS’ LARGE -VOLUME, HIGH-PRESSURE, WA[S]TE-FLUID INJECTION OPERATIONS HAVE COLLECTIVELY CAUSED FLOODING DAMAGE TO THE DEVELOPMENT OF PLAINTIFFS’ MINERAL ESTATE.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY REFUSING PLAINTIFFS LEAVE TO AMEND THEIR COMPLAINT WHERE THE ALLEGATIONS PLAINLY GAVE RISE TO COGNIZABLE CLAIMS FOR DAMAGES.” In May 2022, appellants filed a complaint that alleged 16 defendants’ waste -fluid injection operations have caused
toxic waste to migrate to appellants’ property. Appellants
averred that this toxic waste extensively and permanently
damaged their property. The complaint named the following
defendants: (1) Redbird Development, LLC; (2) Dean Patrick
Decker III; (3) Hall Drilling, LLC; (4) Deeprock Operating
Solutions, LLC; (5) Deeprock Disposal Solutions, LLC; (6)
Fountain Quail Drilling, LLC; (7) Brian Chavez; (8) Christyann
Heinrich-Chavez; (9) J.D. Drilling Company; (10) James E.
Diddle; (11) K&H Partners, LLC; (12) Tallgrass Operations, LLC;
(13) Reliable Enterprises, Inc.; (14) Diversified Production,
LLC; (15) Heckmann Water Resources (cvr), Inc.; and (16) Nuverra
Environmental Solutions, Inc. [1] The Lanes reside in, and own property in, Washington
County. Mr. Lane is the owner, operator, and President of
Bethel Oil and Gas, LLC (Bethel), a gas and oil-drilling
production company that has gas and oil reservoirs in Washington
and Athens counties. Bethel operates on property that
*4 “[appellants] have an exclusive and absolute ownership interest
in the right to develop and produce gas and oil from or beneath
[appellants’] property to the deepest possible depths of Ohio’s
gas and oil reservoirs.” Appellants further possess “absolute and exclusive
ownership interest in the right to drill, develop, and produce
the gas and oil reservoirs, covering approximately 1,471 acres
in Washington County, Ohio and 2,317 acres in Athens County,
Ohio,” and they also have “an ownership interest in the
equipment, business infrastructure, and manpower to commercially
develop gas and oil.” Bethel “has drilled, owned and/or
operated a number of subsurface gas and oil wells in the Berea
Sandstone Formation reservoirs in ” Washington and Athens
counties. The 16 defendants engage in fracking operations.
Fracking produces “residual waste fluids” that contain “various
salts” and “toxic substances that intermix underground,
including but not limited to metals (e.g., barium, manganese,
iron, and strontium), benzene, toluene, ethylbenzene, xylenes,
oil, grease, radioactive materials (including radium), fracking
additives and/or chemicals, and chemical transformation
products.” Additionally, these residual waste fluids can
“become contaminated with other chemicals commonly used in
hydro-fracking operations including but not limited to diesel
fuel, hydrocarbons, barite, pesticides, surfactants, and
defoaming agents.” Fracking “operations result in the creation
of significant volumes of waste fluid.” Ohio law regulates the
disposal of this waste fluid and requires that the waste fluid
“be particularly disposed of in strict accordance with the Ohio
Revised Code, the Ohio Administrative Code, and the laws of Ohio
generally.” Each appellee owns, operates, “and/or” manages “one or
more” injections wells “in Washington County, Ohio and/or Athens
County, Ohio” “to accept, handle, inject, deposit, accumulate,
manage, store, and/or possess waste fluids including those
generated as a consequence of regional, hydraulic fracturing
operations.” Redbird operates Redbird #4 and Redbird #5.
Deeprock operates American Growers 1 and Heinrich Unit 1. JDDC
operates George & Clara Conroy 1 and Earl & Ellen Showalter.
Tallgrass operates K&H Partners LLC 1 and K&H Partners LLC 2.
Diversified operates Hattie L Flower and Nichols 1-A. Reliable
operates Frost M. *6 Appellants alleged that appellees inject waste fluid
from their fracking operations into their respective injection
wells, and this waste fluid contaminated appellants’ property.
Appellees “conduct their waste fluid injection operations within
sufficient proximity to [appellants’] Property and the Bethel
Wells to infiltrate, invade, flood, contaminate, pollute, and
damage the gas and oil reservoirs beneath [appellants’] Property
and the Property itself, including but not limited to certain of
the Bethel We lls, with harmful volumes of waste fluid.”
Appellees’ “Injection Wells have infiltrated, flooded,
contaminated, polluted, and/or damaged certain of the Bethel
Wells and damaged [appellants’] and [their] Property.” An August 2020 Ohio Department of Natural Resources
(ODNR) investigation reported that “significant quantities of
injection waste fluid from the Redbird #4 Class II Injection
Well” had been found “in a number of producing gas wells located
in the Berea Sandstone formation that had historically produced
little or minimal water, including but not limited to one of the
Bethel Wells: B.P. Pinkerton #1.” Redbird purportedly
relocated Redbird #4 to a lower depth, but appellants “have
continued to experience continuing and expanding losses of gas
and oil production from the Bethel Wells.” Appellees’ “waste
fluid has infiltrated, invaded, flooded, contaminated, polluted,
damaged and/or rendered [appellants’ gas and oil reservoirs]
commercially nonviable.” As a result, appellants “have
experienced and continue to experience significant, continual
and expanding production losses of gas and oil from the Bethel
Wells, along with revenue losses derived therefrom.” Four wells
in particular have become useless: (1) Sandra 1; (2) C.E. and
Mary L. Pinkerton; (3) B.P. Pinkerton #1; and (4) Pinkerton #4. Appellants claimed that “[t]he sizeable and collective
scope of [appellees’] ongoing waste fluid injection
operations[,] and the resultant, large-scale contamination
and/or pollution of Ohio’s gas and oil reservoirs . . . prevent
[appellants] from further development of gas and oil on their
property.” Appellants further alleged that appellees’ “waste
fluid operations” “breached [appellees’] duties to [appellants],
violated Ohio statutes and regulations, trespassed upon
[appellants], created a nuisance for [appellants], and converted
[appellants’] Property, among other adverse consequences.”
Appellants asserted that appellees’ actions “have caused and
continue to cause substantial and unreasonable damage to, and/or
the loss of, [appellants’] Property, [appellants’] rights, and
[appellants’] private use and enjoyment of their property,
resulting in [appellants’] economic losses, annoyance,
inconvenience, distress, discomfort, and other damages.” The complaint set forth seven “causes of action”:
negligence, negligence per se, trespass, nuisance, “res ipsa
loquitur,” conversion, and “damages.” With respect to their negligence claim, appellants
asserted that appellees were negligent in the following
respects:
a) by failing to adequately consider, and/or choosing to ignore, the harmful impacts of fracking waste fluid on neighboring properties and/or substrata, including but not limited to gas, oil, and potable water reservoirs contained therein; b) by failing to adequately consider, and/or choosing to ignore, the harmful impacts of high-volume fracking waste fluid injection operations on neighboring properties and/ or substrata, including but not limited to gas, oil, and potable water reservoirs contained therein;
c) by failing to adequately investigate and/or determine, and/or choosing to ignore, the zone of harmful and/or damaging impact to neighboring properties and/or substrata from their waste fluid injection operations;
d) by failing to adequately investigate and/or determine, and/or choosing to ignore, appropriate locations to drill their Injection Wells to *9 minimize the potential for harmful or damaging impacts to neighboring properties and/or substrata; e) by siting and/or drilling Injection Wells along fault and/or fracture lines that intersect the Injection Well deposit zones and provide communication pathways to gas, oil and groundwater reservoirs, the Bethel Wells and/or the Plaintiffs’ Property;
f) by using improper drilling techniques and/or drilling materials;
g) by constructing and/or using ineffective and/or defective well casings and/or by failing to case and cement their Injection Wells to prevent exfiltrations of waste fluid outside the permissible injection zone;
h) by negligently planning, training, and/or supervising their employees, contractors, staff, and/or agents;
I) by failing to adequately monitor the volume, positioning, deposit location, accumulation, and/or containment of their waste fluid; j) by accepting cumulative volumes of waste fluid that exceed the capacity of their Injection Wells to adequately contain waste fluid within their permitted and/or permissible injection zones; k) by injecting and/or depositing cumulative volumes of waste fluid that exceed the capacity of their Injection Wells to adequately contain waste fluid within their permitted and/or permissible injection zones;
l) by harming the commercial viability, development potential, and/or utility of Ohio’s oil and gas reservoirs;
m) by failing to construct their Injection Wells and/or well sites in a reasonable manner so as to prevent any harmful, damaging, and/or impactful invasions, releases, spills, discharges, flooding, infiltrations, migrations, intrusions, and/or deposits of fracking waste fluid into gas and oil reservoirs and/or others’ property, including but not limited to Plaintiffs’ Property; *10 n) by failing to take reasonable measures and precautions necessary to divert and/or respond to any harmful, damaging, and/or impactful invasions, releases, spills, discharges, flooding, infiltrations, migrations, intrusions, and/or deposits of waste fluid into gas and oil reservoirs and/or others’ property, including but not limited to Plaintiffs’ Property;
o) by failing to drill, own, and operate their Injection Wells and well sites in a manner that comports with established legal and/or industry standards for drillers, owners, and/or operators of Class Il injection wells;
p) by failing to drill, own, and/or operate their Injection Wells and well sites, in accordance with the laws, codes, statutes, and/or regulations of the State of Ohio, including, but not limited to Ohio Revised Code § 1509.22 and Ohio Administrative Code Sections 1501:9-3-03, 1501:9-3-06, 1501:9-3- 07, 1501.9-3-08, and 1501:9-3-11; q) by failing to dispose of waste fluid in a manner that prevents pollution of Ohio’s natural resources and/ or the Plaintiffs’ Property; r) by creating unreasonable risks to Ohio's gas, oil, other mineral, and groundwater resources; s) by failing to drill, develop, and/or construct Injection Wells of sufficient capacity to contain and prevent any harmful, damaging, and/or impactful invasions, releases, spills, discharges, flooding, infiltrations, migrations, intrusions, and/or deposits of fracking waste fluid into gas and oil reservoirs and/or others’ property, including but not limited to Plaintiffs’ Property; t) by unnecessarily dissipating and/or damaging Ohio’s oil and gas reservoir energy;
u) by inefficiently, excessively, and/ or improperly storing waste fluid;
v) by locating, drilling, equipping, and/or operating their Injection Wells in a manner that reduces or tends to reduce the quantity of oil or gas *11 ultimately recoverable under prudent and proper operations from Ohio's oil and gas reservoirs; w) by locating, drilling, equipping, operating, or producing their Injection Wells in a manner that causes or tends to cause unnecessary or excessive destruction of gas and oil resources; x) by invading the Plaintiffs’ subsurface property in a manner that actually interferes with Plaintiffs’ reasonable and foreseeable use of the subsurface and their Property;
y) by physically damaging and interfering with the use of Plaintiffs Property;
z) by placing, discharging, and/or causing to be placed and/or discharged in the Plaintiffs’ Property waste fluid that causes or could reasonably be anticipated to cause damage or injury to the environment;
aa) by causing or allowing, the movement and/or migration of waste fluid in a manner, and into underground formations, other than as approved and/or authorized by the Ohio division of oil and gas;
bb) by causing and/or allowing waste fluid to migrate out of its injection zone;
cc) by causing and/or allowing waste fluid to migrate into impermissible underground formations not approved for injection of waste fluid; dd) by placing or causing to be placed in the land waste fluid that causes or could reasonably be anticipated to cause damage or injury to public health, public safety, and/or the environment; ee) by exceeding maximum allowable injection pressures; ff) by injecting waste fluid into productive and/or developable gas and oil reservoirs; and/or gg) in other potentially actionable ways. Appellants claimed that appellees’ negligence “caused
waste fluid and/or other harmful contamination to enter into and
significantly and/or irreparably or permanently impair and
damage the quality and commercial viability of gas and oil
reservoirs, the [appellants’] Property, and the Bethel Wells.”
They further alleged that appellees’ “acts and/or omissions
referenced herein were, and continue to be, the direct and
proximate caus e of damages to [appellants] and the Property.” Appellants additionally asserted that appellees were
negligent per se by failing to comply with Ohio statutes and
regulations regarding the protection of gas, oil, and
groundwater reservoirs. They asserted that appellees’
negligence per se is “a direct an d proximate cause of waste
fluid and/or other harmful contaminants entering into and
significantly and/or irreparably or permanently impairing and
damaging the quality and commercial viability of gas and oil
reservoirs, [appellants’] Property, and the Bethel Wells.” For their trespass claim, appellants alleged that
appellees’ conduct has “caused waste fluid to physically invade,
intrude, interfere with, and/or unlawfully enter upon, and cause
substantial damage to, [appellants’] Property without authority,
privilege, invitation, inducement and/or [appellants’]
permission.”
{¶16} With respect to their nuisance claim, appellants asserted that appellees’ actions “have restricted and infringed
upon [appellants’] use and enjoyment of the Property, creating a
qualified nuisance for [appellants].” They alleged that
appellees’
Injection Well operations have imposed a nuisance upon [appellants] in the form of financial, environmental, and emotional hardship inasmuch as [appellees’] Injection Well operations have overtaken and damaged gas and oil production on [appellants’] Proper ty with a toxic substance that is regulated under Ohio law to prevent human and environmental contact, thereby exposing [appellants’] Property . . . to additional regulatory requirements where said requirements would otherwise not have been imposed. Appellants claimed that the damage to their property
“is reasonably believed to be permanent” and that their property
“is believed to be incapable of being restored.” Appellants
further alleged that appellees’ conduct “in creating this
nuisance [was], and continue[s] to be, the direct and proximate
cause of damages to [appellants] and the Property.” Appellants’ complaint also alleged that under the
doctrine of res ipsa loquitur, “it can be readily inferred . . .
that [appellees] have been and continue to be negligent in their
waste fluid injection and/or Injection Well operations.”
Appellants further asserted that appellees’ “negligent waste
fluid injection operations were, and continue to be, the direct
and proximate cause of damages to [appellants] and the
Property.” Regarding their conversion claim, appellants alleged
that appellees have converted appellants’ property by
transforming it from “commercially viable and productive gas and
oil reservoirs and operating gas and oil wells into [appellees’]
own repositories fo r [appellees’] injection, storage,
accumulation, and/or disposal of their waste fluid.” Appellants
also asserted that appellees’
conduct in their waste fluid injection operations has interfered with [appellants’] dominion and/or control over the Bethel W ells and [appellants’] chattel property used in connection with the operation of the Bethel Wells and located upon [appellants’] Property in a manner that is wrongful and inconsistent with, interferes with, and/or denies and/or excludes, and is damaging to, [appellants’] rights, resources, and abilities to commercially produce and/or develop, and/or lease the right to develop, gas and oil in Washington County, Ohio and/or Athens County, Ohio, and/or otherwise benefit from their Property. Appellants claimed that appellees’ “wrongful acts . .
. constitute a conversion of [appellants’] Property that has
interfered with and damaged [appellants’] rights, resources, and
abilities to commercially produce and/or develop, and/or lease
the right to develop, gas and oil.” They contended that
appellees’ conduct “has been so great as to be akin to the
imposition of a ‘forced judicial sale’ and requires [appellees]
to pay the fu ll value of the [appellants’] Property with which
they have interfered.” Appellants also alleged that appellees’
conversion is a “direct and proximate cause” of their damages. Appellants next set forth the damages that they have
suffered “[a]s a direct and proximate result of [appellees’]
aforementioned acts and/or omissions.” More particularly,
appellants alleged that they have sustained the following
damages: (1) “the loss of value of” their property; (2) “the
loss of use and enjoyment of” their property; (3) “inconvenience
and discomfort caused by interference with the peaceful
possession and enjoyment of” their property; (4) “the loss of
physical gas and oil and/or gas and o il production”; (5) “the
loss of business revenue”; (6) “the loss of sunk operating
costs”; (7) “interference with and/or the loss of the absolute
and exclusive rights to produce, lease, and/or sublease the
right to produce gas and oil on their Property”; (8) “the
violation of [appellants’] rights to access, develop and rely
upon untainted gas and oil reservoirs of the state as guaranteed
by the Ohio Constitution and laws of the State of Ohio”; (9)
“harm to [appellants’] business operations and/or relationships
with [appellants’] lessors”; (10) “interference with and/or
damage to [appellants’] leaseholds”; (11) “interference with
[appellants’] private use and enjoyment of their land and/or
Property”; (12) “harm to and/or the loss of use of [appellants’]
business equipment”; (13) “costs incurred to attempt to
investigate, repair and/or mitigate, and/or clean up the damage
to” their property; (14) “loss of confidence in the quality of
[their property] for commercial gas and oil development”; (15)
“inconvenience, distress, anxiety, and/or emotional and mental
anguish”; (16) “discom fort and annoyance related to the loss of
use and/or loss of enjoyment and/or contamination of the
Property; and/or”; (17) “loss of the quality of life
[appellants] otherwise enjoyed.” Appellants also alleged that appellees’ conduct
warrants punitive damages. They asked the court to find
appellees “jointly and severally” liable. *17 Appellants later dismissed their claims against
Fountain Quail Drilling, LLC. The 15 remaining defendants [2] filed
Civ.R. 12(B)(6) motions to dismiss appellants’ complaint for
failure to state a claim upon which relief can be granted.
These defendants essentially asserted that appellants’ complaint
failed to allege operative facts that connected each defendant
to appellants’ injuries and failed to give the defendants
sufficient notice of the claims raised against them. Although
each defendant framed the argument in a slightly different
manner, they all raised some variation of the argument that
appellants’ comp laint does not contain sufficient facts to give
them notice of “the basic ‘who’, ‘what’, ‘when’, and ‘where’ so
that [the defendants] may know at least the bare minimum about
the claims against them.” Redbird’s Motion to Dismiss at 8. Some of the defendants also argued that appellants’
complaint failed to show that the defendants’ conduct
proximately caused appellants’ injuries. For example, Tallgrass
*18 argued that appellants “fail[ed] to meet their burden for
showing Tallgrass proximately caused the harm described in the
Complaint.”
{¶25} The defendants further argued that appellants’ conversion claim failed to state a claim upon which relief could
be granted because it did not allege that any defendant had
converted appellants’ personal property, but instead, alleged
only that the defendan ts had converted appellants’ mineral
estate, which the defendants asserted is real property.
{¶26} The defendants also contended that appellants’ “res ipsa loquitur” claim fails to state a claim upon which relief
could be granted. They asserted that res ipsa loquitur is an
evidentiary rule, not an independent cause of action. The defendants additionally asked the court to dismiss
appellants’ “claim” for emotional damages. They asserted that
Bethel is a business entity that cannot recover emotional
damages. Tallgrass and JDDC further argued that appellants’
nuisance claim fails to state a claim upon which relief can be
granted. They contended that to state a nuisance claim,
appellants must allege that they suffered physical discomfort,
but their complaint only seeks damages for their loss of use and
enjoyment of their property. Tallgrass and JDDC thus asked the
court to dismiss appellants’ nuisance claim.
{¶29} The trial court granted the defendants’ motions to dismiss. The court agreed with the defendants that appellants’
complaint failed to allege sufficient facts to give the
defendants notice of the claims against them. The court also
agreed with the defenda nts that appellants’ complaint failed to
allege “what property [the defendants] have damaged, when the
property was damaged, who actually damaged what property,” and
“whether the property damaged was held in fee simple or were
leased mineral rights.” [3] On January 31, 2023, appellants filed a motion for
leave to amend their complaint and submitted a 63-page proposed
amended complaint that intended to address the purported ills of
which the defendants had claimed appellants’ initial complaint
suffered. On March 13, 2023, the trial court denied appellants’
motion to amend their complaint. The court found that the
*20 proposed amended complaint failed to give appellees “notice as
to which [d]efendant did what to which well” and does “not
identify the specific property rights that have been harmed by
which [d]efendant.” The court stated that the proposed amended
complai nt “again fails to answer the who, what, when, where[,]
and how questions required by Civil Rule 8.” [4] The court
determined that the amended complaint did not remedy the
purported defects appellees identified in their motions to
dismiss. The court thus concluded that the proposed amendment
would be futile and the court denied appellants’ motion to amend
the complaint. This appeal followed.
I In their first assignment of error, appellants assert that the trial court erred by dismissing their complaint.
Appellants contend that when the trial court evaluated whether
appellants’ complaint fails to state a claim upon which relief
*21 can be granted, the court imposed a heightened pleading standard
that does not exist in Ohio. Appellants assert that under
Ohio’s liberal, notice -pleading standard, their complaint does
not fail to state a claim upon which relief can be granted.
They argue that the complaint gives appellees adequate notice of
appellants’ claims and that, contrary to appellees’ innuendos,
they need not support their claims at that juncture with
evidence or scientific proof. Appellees counter that appellants’ complaint fails to
satisfy Ohio’s notice -pleading standard. While each appellee
offers slightly different reasons why appellants’ complaint
fails this standard, they essentially argue that appellants’
complaint (1) is nothing but utter speculation, and (2) fails to
allege the “operative facts” that give rise to the claims for
relief. Appellees also repeat the argument that they raised
below –that the complaint fails to provide appellees “with the
basic ‘who’, ‘what’, ‘when’, and ‘where’ so that [appellees] may
know at least the bare minimum about the claims against them.” [5]
Redbird’s Brief at 10.
*22 JDDC takes the argument one step further and asserts that appellants’ complaint does not “ credibly allege that the
large-volume, high pressure waste fluid injection operations of
Appellees J.D. Drilling Company and James E. Diddle collectively
caused flooding damage to the development of Plaintiff’s mineral
estate.” (Emphasis added.) We summarily dis miss this argument
from the start because it directly conflicts with Ohio law,
which, as stated below, requires courts to presume that all
factual allegations contained in the complaint are true. The
credibility of the allegations is not a proper consideration at
the motion-to-dismiss stage.
STANDARD OF REVIEW “Appellate courts conduct a de novo review of trial court decisions that grant or deny a Civ.R. 12(B)(6) motion to
dismiss.”
[6]
Student Doe v. Adkins
,
Dist.), citing Alexander Local School Dist. Bd. of Edn. v.
*23
Village of Albany
,
Valentine v. Cedar Fair, L.P.
,
Alford v. Collins-McGregor Operating Co.
,
therefore afford no deference to the trial court’s decision, but
instead, independently review the trial court’s decision.
Struckman v. Bd. of Edn. of Teays Valley Local School Dist. ,
MOTION-TO-DISMISS STANDARD Civ.R. 12(B)(6) allows a party to file a motion to dismiss a complaint for failing to state a claim upon which
relief can be granted. “[A] Civ.R. 12(B)(6) motion to dismiss
tests only the sufficiency of the allegations.” Volbers – Klarich
v. Middletown Mgt., Inc.
,
the Defense of the Washington Local School Dist. v. Kiger, 42
Ohio St.3d 116, 117 (1989); accord State ex rel. Hanson v.
Guernsey Cty. Bd. of Commrs.,
(explaining that a Civ.R. 12(B)(6) motion to dismiss tests the
sufficiency of the complaint). A court that is considering a
Civ.R. 12(B)(6) motion to dismiss for failure to state a claim
upon which relief can be granted must presume that all factual
allegations contained in the complaint are true and must
construe all reasonable inferences in favor of the nonmoving
party. E.g., Schirmer v. Mt. Auburn Obstetrics & Gynecologic
Assoc., Inc.
,
Motor Co.
,
St.3d 397, 399 (1993). Consequently, a trial court may not
grant a motion to dismiss for failure to state a claim simply
because the court “doubts the plaintiff will prevail.” Bono v.
McCutcheon
,
Cty. of Cuyahoga,
“Rule 12(B)(6) motions should be granted only where the
allegations in the complaint show the court to a certainty that
the plaintiff can prove no set of facts upon which he might
recover.”
Slife v. Kundtz Properties, Inc.
,
185-186 (8th Dist.1974); accord State Auto. Mut. Ins. Co. v.
Titanium Metals Corp. , 2006-Ohio- 1713, ¶ 8 (stating that “a
trial court must examine the complaint to determine if the
allegations provide for relief on any poss ible theory”). In
other words, a trial court may grant a motion to dismiss for
failure to state a claim only if it appears “beyond doubt from
the complaint that the plaintiff can prove no set of facts
entitling him to recovery.” O’Brien v. Univ. Community Tenants
Union,
Yurasek & Merklin,
Co.,
Ohio St.3d 143, 144 (1991); see also State ex rel. Ware v.
Booth
,
does not permit courts to weigh the evidence, and thus, even
though the relator’s “account seem[ed] farfetched,” motion for
judgment on the pleadings was not warranted). “This standard is consistent with Civ.R. 8(A), which
provides for notice pleading and requires only (1) ‘a short and
plain statement of the claim showing that the pleader is
entitled to relief, and (2) a demand for judgment for the relief
to which he deems himself entitled.’” State ex rel. Hanson v.
Guernsey Cty. Bd. of Commrs.
,
Wilson v. Riverside Hosp.
,
(citation omitted) (“The purpose of [Civ.R. 8(A)] is to notify
the defendant of the legal cla im against him.”). Importantly,
Ohio remains “a notice - pleading state.” Doe v. Greenville City
Schools
,
Horn
,
Hamilton Cty. Dept. of Job and Family Servs.
,
10. Moreover, the Ohio Supreme Court has not adopted “the
heightened federal pleading standard” arguably endorsed in
Twombly
and
Iqbal
.
State ex rel. Ware v. Booth
,
¶5, fn. 1. Accordingly, “Ohio law does not ordinarily require a
plaintiff to plead operative facts with particularity.”
Cincinnati v. Beretta U.S.A. Corp.
,
Instead, “only in a few circumscribed types of cases, such as a
workplace intentional tort or a negligent-hiring claim against a
religious institution,” must a “plaintiff plead operative facts
with particularity.” Id. at ¶ 29, fn.5, citing York , 60 Ohio
St.3d at 145;
see Mitchell v. Lawson Milk Co.
,
(1988) (employee’s inte ntional tort claim against employer) and
Byrd v. Faber
,
against religious institution); see also S.Ct.Prac.R.
12.02(B)(1) (complaints in original actions filed in the Supreme
Court); Civ.R. 9(B) (claims of fraud or mistake). Any further
“exceptions to the pleading requirement of the Civil Rules,
which were adopted by the Supreme Court [of Ohio] to specify the
types of pleadings that are appropriate, should be made by the
Supreme Court only and not by lower courts.” McCormac, Ohio
Civil Rules Practice 98, § 5.02 (3d Ed. 2003). Thus, outside the limited types of cases identified
above, Civ.R. 8(A) simply requires “a short and plain statement
of the claim” and a demand for relief. See Black’s Law
Dictionary (12th ed. 2024) (defining “notice pleading” as “[a]
procedural system requiring that the pleader give only a short
and plain statement of the claim showing that the pleader is
entitled to relief, and not a complete detailing of all the
facts”). A complaint is not, therefore, “fatally defective and
subject to dismissal” simply because it does not set forth each
element of a cause of action “with crystalline specificity.”
Border City Sav. & Loan Assn. v. Moan
,
(1984). We further observe that Civ.R. 84 specifically states
that the forms contained in the Appendix of Forms to the Ohio
Civil Rules “shall be accepted for filing by courts of this
state.” Civ.R. 84 also specifies that those forms illustrate
“the simplicity an d brevity of statement which these rules
contemplate.” One of the forms included in the appendix is a
“[c]omplaint for negligence where plaintiff is unable to
determine definitely whether the person responsible is C.D. or
E.F. or whether both are responsible and where his evidence may
justify a finding of wilfulness or of recklessness or of
negligence.” Civ.R. Form 9. This form reads in its entirety as
follows:
1. On _____, 19___, in a public highway called _____ Street in _____, Ohio, defendant C.D. or defendant E.F., or both defendants C.D. and E.F. wilfully or recklessly or negligently drove or caused to be driven a motor vehicle against plaintiff who was then crossing said highway.
2. As a result plaintiff was thrown down and had his leg broken and was otherwise injured, was prevented from transacting his business, suffered great pain of body and mind, and incurred expenses for medical attention and hospitalization in the sum of one thousand dollars.
WHEREFORE plaintiff demands judgment against C.D. or against E.F. or against both in the sum of _____ dollars and costs.
Id. This form thus reveals that contrary to appellees’ repeated
assertions throughou t the proceedings, Ohio’s liberal, notice -
pleading rules do not (outside of the very limited exceptions
that do not apply here) require facts to be alleged with
particularity. See generally Maternal Grandmother , 2021-Ohio-
4096, at ¶ 11 (“when a complaint invokes the exception to a
government employee’s immunity under R.C. 2744.03(A)(6)(b),
notice pleading suffices and the plaintiff may not be held to a
heightened pleading standard or expected to plead the factual
circumstances surrounding an allegation of wanton or reckless
behavior with particularity”); Coryell v. Bank One Tr. Co. N.A. ,
2004-Ohio- 723, ¶ 25 (“a plaintiff may plead a prima facie case
of age discrimination by pleading ‘a short and plain statement
of the claim showing that the party is entitled to relief.’
Civ.R. 8(A)(1).”);
Beretta
,
complaint complied with notice- pleading standard when “it
alleged that appellees had manufactured or supplied defective
guns without appropriate safety features”; the complaint need
not “allege with specificity that particular guns were defective
and as a result caused particular injuries”); York , 60 Ohio
St.3d at 144 –45 (“In her complaint, the appellee alleged that
although the decedent was not disturbing the peace or violating
the law, the officers pursued him ‘negligently, needlessly,
willfully and maliciously,’ and used excessive force to enga ge
in a high speed chase with him. On the basis of this claim, we
cannot conclude that there is no set of facts which would
entitle the appellee to recover from the state.”); Wilson v.
Riverside Hosp.
,
by an employee against an employer states a claim for relief for
retaliatory discharge when it alleges that the employee was
injured on the job, filed a claim for workers’ compensation and
was discharged by that employer in contravention of R.C.
4123.90”);
Border City Sav. & Loan
,
will be incumbent upon appellant to establish that these
lawsuits were instituted maliciously, without probable cause,
and, as a general rule, were terminated in appellant’s favor.
Nonetheless, it does not render appellant’s com plaint fatally
defective and subject to dismissal that each element of its
cause of action was not set forth in the complaint with
crystalline specificity.”). “Thus, to survive a motion to dismiss for failure to
state a claim upon which relief can be granted, a pleader is
ordinarily not required to allege in the complaint every fact he
or she intends to prove . . .” State ex rel. Hanson , 65 Ohio
St.3d at 549, citing
York
,
complaint need not contain more than “brief and sketchy
allegations of fact to survive a motion to dismiss under the
notice pleading rule”); City of Willoughby Hills v. Cincinnati
Ins. Co.
,
complaint set forth specific factual allegations.”); see also
Civ.R. 8(E) (averments contained in a pleading “shall be simple,
concise, and direct”). A complaint must, however, “‘contain
allegations from which an inference fairly may be drawn that
evidence on these material points will be introduced at trial.’”
Schlenker Ents., L.P. v. Reese
,
quoting
Fancher v. Fancher
,
1982). “Consequently, ‘as long as there is a set of facts,
consistent wi th the plaintiff’s complaint, which would allow the
plaintiff to recover, the court may not grant a defendant’s
motion to dismiss.’”
Beretta
,
York
,
legal theory” of the case at the pleading stage. Illinois
Controls, Inc. v. Langham
,
Instead, the complaint “need only give reasonable notice of the
claim.”
State ex rel. Harris v. Toledo
,
(1995). Furthermore, “a plaintiff is not required to prove his
or her case at the pleading stage.”
York
,
145. And notably, “Civ.R. 8(A) does not contemplate evidentiary
pleading.” Collins v. National City Bank , 2003 – Ohio – 6893, ¶ 58
(2d Dist.). Indeed, “[v]ery often, the evidence necessary for a
plaintiff to prevail is not obtained until the plaintiff is able
to discover materials in the defendant’s possession.” York , 60
Ohio St.3d at 145; accord State ex rel. Hanson , 65 Ohio St.3d at
549 (citing York and noting that the facts necessary to prove
claims alleged in a complaint “may not be available until after
discovery”).
Moreover, Civ.R. 8(F) provides that courts should
construe the pleadings so as to do substantial justice.
The object is not absolute technical conformity with
arcane rules of pleading but rather simply to see whether
the plaintiffs’ wording provides the defendants with
notice of the claim and the opportunity to defend it.
Ogle v. Ohio Power Co.
,
(concluding “that delving into the nuances of absolute versus
qualified nuisance should be reserved for discovery and summary
judgment”). The foregoing “simplified notice -pleading standard
relies on liberal discovery rules and summary-judgment motions
to define disputed facts and to dispose of nonmeritorious
claims.” Id. at ¶ 5 (4th Dist.); McCormac at 222, § 10.01
(“discovery, rather than pleadings, is used to clarify and
narrow the issues”). In fact, “‘[b]ecause it is so easy for the
pleader to satisfy the standard of Civ.R. 8(A), few complaints
are subject to dismissal.’”
Ogle
,
Dist.), quoting Leichtman v. WLW Jacor Communications, Inc. , 92
Ohio App.3d 232, 234 (1st Dist. 1994). Additionally, “[a]
motion to dismiss for failure to state a claim is viewed with
disfavor and is rarely granted.” Wilson v. Riverside Hosp. , 18
Ohio St.3d 8, 10 (1985) (citations omitted). Consequently,
Civ.R. 12(B)(6) dismissals are “reserved for the rare case that
cannot possib ly succeed.” Tri – State Computer Exchange, Inc. v.
Burt
,
12(B)(6) motion to dismiss “cannot rely on evidence or
allegations outside the complaint.” State ex rel. Fuqua v.
Alexander,
v. Middletown Mgt., Inc. , 2010-Ohio- 2057, ¶ 11 (“the movant may
not rely on allegations or evidence outside the complaint; such
matters must be excluded, or the motion must be treated as a
motion for summary judgment”). However, “[m]aterial
incorporated in a complaint may be considered part of the
complaint for purposes of determining a Civ.R. 12(B)(6) motion
to dismiss.” (Citations omitted.) State ex rel. Crabtree v.
Franklin Cty. Bd. of Health
,
(1997). Thus, a court may consider written instruments attached
to a complaint when ruling on a Civ.R. 12(B)(6) motion to
dismiss. Cooper v. Highland Cty. Bd. Of Commrs. , 2002-Ohio-
2353, ¶ 9 (4th Dist.); see also Civ.R. 10(D) (“When any claim or
defense is founded on an account or other written instrument, a
copy of the account or written instrument must be attached to
the pleading.”). In the case sub judice, we recognize that appellees
presented the trial court with quotations from cases that appear
to impose a heightened pleading standard. As we stated above,
however, the Ohio Supreme Court has not endorsed a heightened
pleading standard, except in very limited types of cases, none
of which is relevant here. Moreover, the appendix of forms
contained in the Ohio Rules of Civil Procedure indicate that a
complaint need not contain detailed factual allegations, as
appellees persistently have argued. Furthermore, appellees cite no Ohio case law that
demands a complaint answer the who, what, when, where, and how
questions that they claim Civ.R. 8(A) requires. That standard
the appellees desire to be applied appears to have originated in
federal court cases that apply a heightened pleading standard in
fraud cases.
UMB Bank, N.A. v. Guerin
,
Cir. 2024), quoting
Crest Constr. II, Inc. v. Doe
,
353 (8th Cir. 2011) (“‘[A]llegations of fraud . . . [must] be
pleaded with particularity. In other words, [Federal] Rule 9(b)
requires plaintiffs to plead the who, what, when, where, and
how: the first paragraph of any newspaper story.’”); Young v.
Grand Canyon Univ., Inc.
,
(“a p laintiff needs to plead the who, what, when, where, and how
regarding a claim only when Rule 9(b)’s heightened pleading
standard applies”); Sanderson v. HCA-The Healthcare Co. , 447
F.3d 873, 877 (6th Cir. 2006), quoting United States ex rel.
Thompson v. Columbia/HCA Healthcare Corp.
,
(5th Cir. 1997) (internal quotation marks omitted) (“Rule 9(b)
requires parties bringing a claim for fraud or fraudulent
concealment to specify the ‘who, what, when, where, and how of
the alleged fraud.’”). We recognize that the case at bar involves Ohio’s
Civil Rules of Procedure, not the Federal Rules of Civil
Procedure, and it does not involve fraud. Thus, appellees’
assertions that appellants must plead particulars regarding the
who, what, when, where, and how to satisfy Ohio’s notice -
pleading standard is without merit. See Pugh v. Sloan , 2019-
Ohio- 3615, ¶ 40 (11th Dist.) (“Civ. R. 8 does not require” a
complaint to allege “what was allegedly stolen or slandered,
when it was stolen or slandered, and by whom”); see generally
Ogle , 2008-Ohio- 7042, at ¶ 9 (4th Dist.) (Civ.R. 8(A) “dictates”
when deciding whether a complaint gives fair notice so as to
survive a motion to dismiss for failure to state a claim and
courts need not parse “the complaint to see whether the
plaintiffs have pleaded operative facts going to each element of
the claim” or “delv[e] into the nuances” of each claim; instead,
those details “should be reserved for discovery and summary
judgment”). As we explain below, applying the correct, notice-
pleading standard to appellants’ complaint shows that
appellant’s complaint satisfies this standard. Therefore, we
believe that the trial court incorrectly dismissed appellants’
complaint.
EVIDENCE OUTSIDE OF THE COMPLAINT Before we review whether appellants’ complaint fails to state a claim upon which relief can be granted, we first
consider some of the appellees’ arguments that we may consider
evidence outside of the complaint, such as the ODNR report and
the precise location of the parties’ wells. Tallgrass argued
that the trial court could consider the ODNR report because
appellan ts’ complaint “effectively incorporate[d]” it by
“repeatedly rely[ing] on it to bring their claims.” Some of the
appellees further argue that we may take judicial notice of the
location of the wells identified in the complaint by examining
maps obtained from the ODNR website. We do not agree that we may consider the ODNR report
when we consider whether appellants’ complaint fails to state a
claim upon which relief can be granted. Appellants did not
attach a copy of the ODNR report to their complaint. Moreover,
unlike actions founded on an account or a written instrument,
which require a party to attach a copy of the account or written
instrument to the pleading, Civ.R. 10(D)(1), appellants’ tort
complaint is not founded upon an account or written instrument.
Moreover, appella nts’ tort claims are not medical, dental,
optometric, or chiropractic claims that require an affidavit of
merit to accompany the complaint. See Civ.R. 10(D)(2).
Appellants’ tort claims do not otherwise fall within any other
exception that would require the complaint to allege the
existence of a written report, like the ODNR report, that
arguably may support their tort claims. See generally Estate of
Hand by & through Hand v. Florida Dept. of Corr. , 2023 WL
119426, *8 (11th Cir. Jan. 6, 2023) (“a plaintiff is not
required to put expert testimony within a complaint itself — that
would raise the pleading standard well-beyond what is
required”). Additionally, requiring a party to attach evidence
that may support claims for relief that do not fall within one
of the Ci v.R. 10(D) exceptions is contrary to Ohio’s liberal,
notice-pleading standard. See Wells Fargo Bank, N.A. v. Horn ,
2015-Ohio- 1484, ¶ 13 (“To require a plaintiff to attach proof of
standing to a foreclosure complaint would also run afoul of
Ohio’s notice - pleading requirements.”). For this reason, we do
not believe that the complaint’s reference to the ODNR report
must result in the conclusion that the complaint incorporated
the entire ODNR report and that we may consider it when
determining whether appellants’ complaint states a claim upon
which relief can be granted. Even if, for purposes of argument, we were to consider
the entire ODNR report, we observe that a Civ.R. 12(B)(6)
dismissal based upon a written instrument “is proper only when
the language used in the written instrument is clear and
unambiguous and creates ‘an insuperable bar to relief.’”
Alexander Local School Dist.
,
Dist.), quoting
Slife
,
does not create an insuperable bar to relief. It does not show
that it is impossible that injection wells other than the
Redbird #4 injection well may have contaminated appellants’
mineral estate. Regarding appellees’ assertion that we may take
judicial notice of the location of the parties’ wells, even if
we were to take judicial notice of the location of the wells,
whether waste fluid from an injection well located miles away or
in a different county, for instance, may have contaminated
appellants’ property is a factual question not suited for
determination upon a motion to dismiss. We again note that
appellants need not prove their case in their complaint.
STANDING Appellants also argue that the trial court incorrectly dismissed their complaint for lack of standing. Appellants
assert that the complaint contains sufficient allegations to
notify appellees that appellants claim a joint property interest
in the damaged property.
{¶54} Appellees Redbird and JDDC argue that appellants’ complaint fails to establish that appellants have standing to
seek relief against Redbird and JDDC. Redbird contends that
appellants lack standing because they “failed to plead an actual
injury” by failing “to provide any meaningful description or
identification of the property that was allegedly damaged.”
Redbird further asserts that the complaint does not
“sufficiently allege that any of the [a]ppellants own the
underlying mineral interests that [a]ppellees allegedly
damaged.” JDDC claims that appellants lack standing because they
“did not allege that any specific injury was fairly traceable to
any unlawful conduct by” JDDC. JDDC also contends that the
complaint fails “to identify who owns the mineral rights that
have been dama ged in order to establish who has standing to sue”
and does not identify “any possible claim” that Ms. Lane “may
have.” “Before an Ohio court can consider the merits of a
legal claim, the person or entity seeking relief must establish
standing to sue.” ProgressOhio.org, Inc. v. JobsOhio , 2014-
Ohio-2382, ¶ 7, quoting Ohio Pyro, Inc. v. Ohio Dept. of
Commerce, Div. of State Fire Marshal
,
essential question “is whether the party seeking relief has
‘alleged such a personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends
for illumination.’” Racing Guild of Ohio, Local 304 v. Ohio
State Racing Comm.,
v. Carr,
principles, a plaintiff must show, at a minimum, that he has
suffered “‘(1) an injury that is (2) fairly traceable to the
defendant’s allegedly unlawful conduct, and (3) likely to be
redressed by the requested relief.’” State ex rel. Walgate v.
Kasich
,
Ohio-2382, at ¶ 7, quoting
Moore v. Middletown,
¶ 22. At the pleading stage, a plaintiff “is ‘not required
to establish its standing beyond the allegations of the
[c]omplaint.’”
Wells Fargo Bank, N.A. v. Horn
,
13, quoting Chase Home Fin., L.L.C. v. Mentschukoff , 2014-Ohio-
5469, ¶ 20 (11th Dist.). A complaint sufficiently establishes a
plaintiff’s standing when it alleges “enough general facts to
show that injury resulted from the defendant’s conduct, because
when deciding a motion to dismiss, a court will presume ‘that
general allegations embrace those specific facts that are
necessary to support a claim.’” Sacksteder v. Senney , 2012-
Ohio-4452, ¶ 62 (2nd Dist.), quoting S. Christian Leadership
Conference v. Combined Health Dist. , 2010 – Ohio – 6550, ¶ 17 (2d
Dist.);
accord State ex rel. Walgate
,
citing
Lujan v. Defenders of Wildlife
,
(“we presume that general allegations embrace the specific facts
necessary to support a claim”). In the case sub judice, we believe that appellants’
complaint sets forth sufficient general facts to show that
injury resulted from Redbird’s and JDDC’s conduct. The
complaint identifies the injury as appellants’ damaged mineral
estate. The complaint fai rly traces Redbird’s and JDDC’s
conduct to that injury by alleging that Redbird and JDDC inject
toxic waste into injection wells located near appellants’
property. Appellants’ complaint lists multiple duties that each
appellee allegedly breached and alleges that, as a result of
those breaches, appellants suffered injuries. These claims
sufficiently allege that appellants’ injuries are fairly
traceable to Redbird’s and JDDC’s purported unlawful conduct.
We again emphasize, however, that at the pleading stage,
appellants need no t definitively prove that Redbird’s and JDDC’s
conduct actually caused appellants’ injury, or scientifically
detail how their conduct caused appellants’ injury. Furthermore, we believe that the complaint alleges
sufficient facts to show that each appellant has a personal
stake in the outcome of the controversy. Appellants allege that
Redbird’s and JDDC’s conduct damaged appellants’ property in
which appellants share a common interest. The complaint
identifies appellants’ property, in part, as follows: (1) an
“absolute and exclusive ownership interest in the right to
drill, develop, and produce the gas and oil reservoirs, covering
approximately 1,471 acres in Washington County, Ohio and 2,317
acres in Athens County, Ohio, along with an ownership interest
in the equipment, business infrastructure, and manpower to
commercially develop gas and oil”; (2) an “absolute and
exclusive mineral ownership interests give [appellants] the
rights to drill, develop, produce, remove, commercialize, and/or
sell gas and oil, among other rights”; and (3) an “absolute and
exclusive ownership interests also give [appellants] the rights
to lease and/or sublease their rights to drill, develop,
produce, remove commercialize, and/or sell gas and oil.”
{¶60} These allegations provide Redbird notice “of the property that was allegedly damaged” and adequately alleges that
“[a]ppellants own the underlying mineral interests that
[a]ppellees allegedly damaged.” And, contrary to JDDC’s
argument, this allegation als o identifies “who owns the mineral
rights that have been damaged in order to establish who has
standing to sue.” The complaint alleges that appellants
collectively own “the right to drill, develop, and produce the
gas and oil reservoirs” located beneath t heir property. Consequently, we believe that Redbird’s and JDDC’s
standing arguments are without merit. The trial court thus
erred by dismissing appellants’ complaint for lack of standing.
CAUSATION Appellants next assert that the trial court erred by determining that the complaint fails to adequately allege that
appellees’ conduct was the proximate cause of appellants’
injury. They contend that the court wrongly required them “to
establish, or even notice, proximate cause regarding which
defendants damaged which wells, or when and how they did it, as
a prerequisite to discover an actionable claim for damage to
development of the mineral estate as a whole.” Appellants argue
that th e trial court’s finding is contrary to the complaints’
“allegations that the entirety of the enumerated mineral acreage
can no longer be developed, commercialized, or liquidated as a
consequence of the defendants’ collective, regional flooding of
the subsu rface.” They further claim that the trial court
improperly imposed an evidentiary-pleading standard rather than
a notice-pleading standard. Appellees Redbird, Tallgrass, and JDDC contend that
appellants’ complaint fails to sufficiently allege proximate
cause because the complaint does not contain specific facts to
connect each appellee’s operations to appellants’ damages. [7]
*46 The proximate- cause rule limits “‘legal responsibility . . . to those causes which are so closely connected with the
result and of such significance that the law is justified in
imposing liability.’” Johnson v. Univ. Hosps. of Cleveland , 44
Ohio St. 3d 49, 57 (1989), quoting Prosser & Keeton at 264.
“Proximate causation has been described as ‘some reasonable
connection between the act or omission of the defendant and the
damage the plaintiff has suffered.’” Queen City Terminals, Inc.
v. Gen. Am. Transp. Corp.
,
quoting Prosser & Keeton, The Law of Torts 263, Section 41 (5
Ed.1984). An act is a proximate cause of an injury when the
injury sustained is “‘“the natural and probable consequence of
the”’” act.
Jeffers v. Olexo
,
quoting
Ross v. Nutt
,
Miller v. Baltimore & Ohio Southwestern RR. Co. , 78 Ohio St.
309, 325 (1908); see also Strother v. Hutchinson , 67 Ohio St.2d
282, 287 (1981), quoting
Clinger v. Duncan
,
222 (1957) (“‘[W]here an original act is wrongful or negligent
the evidence that the injury incurred was the proximate result
of the maintenance of such nuisance.”).
and in a natural and continuous sequence produces a result which
would not have taken place without the act, proximate cause is
established . . . ’”) “Probable,” as used in the proximate -cause rule, does
not mean “‘more likely than not.’” Gedeon v. E. Ohio Gas Co. ,
“probable” to mean “[l]ikely to exist, be true, or happen”).
Instead, in the proximate- cause context, “probable” means “‘not
unlikely,’ or ‘such a chance of harm as would induce a prudent
man not to run the risk; such a chance of harmful result that a
prudent man would foresee an appreciable risk that some harm
would happen.’”
Gedeon
,
Legal Cause in Actions of Tort , 25 Harv.L.Rev. 103, 116 (1911) Moreover, “[t]here may be more than one proximate
cause of an injury.”
Taylor v. Webster
,
(1967). Thus, a tortfeasor is not relieved from liability
simply because “some other act unites with the original act to
cause injury.”
Clinger
,
Queen City Terminals
,
Minch
,
is used to determine liability when factors other than the
negligence of the tortfeasor may have caused the plaintiff’s
damages.”) Ordinarily, proximate cause is a question of fact for
a jury.
Strother
,
144, 151 (1968) (“It is because what constitutes a ‘natural and
continuous sequence’ is insusceptible of determination other
than in the context of a particular case that the issue of
proximate cause is ordinarily one for determination by the
jury.”). Consequently, “the analysis of proximate cause and
damages [is] ‘not a matter of proof at the pleading stage; it is
a matter for trial or, perhaps, for summary judgment if the
facts are undisputed.’”
Resor v. Dicke
,
(3d Dist.), quoting
Sacksteder,
Dist.). In the case at bar, we believe that appellants’
complaint sufficiently alleges that their injury is the natural
and probable result of appellees’ conduct and, hence, that
appellees’ conduct is a proximate cause of their injury.
Appellants’ complaint uses the language from the proximate-cause
rule stated above and charges that appellees’ actions are
proximate causes of appellants’ injury. For example,
appellants’ negligence claim alleges that appellees’ negligent
conduct “caused waste fluid and/or other harmful contaminants to
enter into and significantly and/or irreparably or permanently
impair and damage the quality and commercial viability of gas
and oil reservoirs, [appellants’] Property, and the Bethel
Wells” and that appellees’ “acts and/or omissions . . . were and
continue to be, the direct and proximate cause of damages to
[appellants] and the Property.” Appellants’ negligence per se claim likewise alleges
that appellees’ violations of “Ohio laws and regulations were a
direct and proximate cause of waste fluid and/or other harmful
contaminants entering into and significantly and/or irreparably
or permanently impairing and damaging the quality and commercial
viability of gas and oil reservoirs, [appellants’] Property, and
the Bethel Wells” and that “Defendants’ acts and/ or omissions
referenced herein were, and continue to be, the direct and
proximate cause of damages to [appellants] and the Property as
more fully set forth in Count VIII below.” Appellants’ trespass claim similarly alleges that
appellees’ conduct has “caused waste fluid to enter upon . . .
[appellants’] Property” and that appellees’ “unauthorized and
unpermitted entry upon the Property in the possession of
[appellants] has directly caused physical damage to
[appellants’] Property . . . and actual interference with the
reasonable and foresee able use of [appellants’] Property, along
with other damages.”
{¶71} Appellants’ nuisance claim also alleges that appellees’ “actions in creating this nuisance were, and continue
to be, the direct and proximate cause of damages to [appellants]
and the Property.” Furthermore, appellants’ conversion claim asserts that
appellees’ “conversion of [appellants’] Property has been, and
continues to be, the direct and proximate cause of damages to
[appellants] and the Property.” These allegations suffice for purposes of notice
pleading. See Ferchill v. Beach Cliff Bd. of Trustees , 2005-
Ohio-3475, ¶ 8-9 (8th Dist.) (complaint sufficiently alleged
proximate cause when it stated, “As a direct and proximate
result of the conduct of the Defendants, Plaintiffs John and
Sharon Ferchill were deprived of the use and enjoyment of their
prop erty.”);
see also Beretta
,
(“Appellant was not required to allege with specificity that
particular guns were defective and as a result caused particular
injuries.”); id. at ¶ 24, quoting James v. Arcadia Machine &
Tool , N.J.Super. No. ESX – L – 6 – 59 – 99, 26 – 27 (Dec. 11, 2001)
(“‘With no more than paper allegations and a complete absence of
discovery, it would be manifestly unfair to bar the Plaintiff[s]
[Newark and its mayor] from attempting to present appropriate
evidence to bridge the gap between breach of duty and
damages.’”); see also James v. Arms Tech., Inc. , 359 N.J.Super.
291, 312 (App. Div. 2003) (quoting James v. Arcadia Machine &
Tool and concluding that the plaintiff’s complaint,
“[i]ndulgently read,” adequately alleged proximate cause when it
asserted that the “defendants purposely or negligently flood the
gun market, knowing that their steady supply of guns will feed
or facilitate the illegal sale of weapons to criminals and other
unlawful users” and that the “defendants individually and
collectively failed to develop and in fact discourage the
development of reasonable safeguards over the distribution
scheme, and that defendants refuse to oversee or supervise the
control of handgun distribution in order to prevent the
foreseeable channeling of guns to such an illegal market”). We
emphasize that “at this posture of the case, we are not
concerned with” appellants’ “ability to prove the facts as
alleged in the complaint.” James v. Arms Tech., Inc. , 359
N.J.Super. at 312. Instead, the question is whether appellants’
complaint satisfies Ohio’s notice -pleading rule. Therefore, contrary to appellees’ innuendos,
appellants’ complaint need not recite scientific facts to prove
that appellees’ conduct is, in fact, the proximate cause of
appellants’ injury. Requiring a complaint to recite scientific
proof is inconsistent with notice pleading. Moreover, some of
the evidence that appellants may need to prove their claims may
be in appellees’ possession.
See York
,
(“[v]ery often, the evidence necessary for a plaintiff to
prevail is not obtained until the plaintiff is able to discover
materials in the defendant’s possession.”). Furthermore, we do not agree with Tallgrass’s argument
that appellants’ complaint must use the phrasing from Queen City
Terminals and precisely allege “‘some reasonable connection
between the act or omission of the defendant and the damage the
plaintiff has suffered.’”
& Keeton at 263. This “reasonable connection” rule simply is
another way of explaining the meaning of “proximate cause.” See
id. , quoting Prosser & Keeton (“Proximate causation has been
described as ‘some reasonable connection between the act or
omission of the defendant and the damage the plaintiff has
suffered.’”);
see also Johnson
,
Prosser & Keeton at 264 (“‘Proximate cause’— in itself an
unfortunate term — is merely the limitation which the courts have
placed upon the actor’s responsibility for the consequences of
the actor’s conduct.’”). This “reasonable connection” rule is
not an independent element that must be pled in a complaint in
order to survive a Civ.R. 12(B)(6) motion to dismiss. Additionally, as we noted above, before the 1970
enactment of “the Ohio Rules of Civil Procedure in 1970, this
state’s civil practice required verified and particularized
pleadings.”
Poulos v. Parker Sweeper Co.
,
125 (1989). However, “[w]ith the advent of the Modern Courts
Amendment and notice pleading, the Civil Rules provided for
extensive pretrial discovery and disclosure of facts within the
knowledge and control of the litigants. The purpose of these
reforms was to place the respective litigants in parity, avoid
‘surprise,’ and encourage settlement of controversies prior to
trial.” [8] Id. at 125 – 26. The notice-pleading standard does not,
therefore, require a plaintiff to precisely explain the specific
evidence that supports each claim for relief. Consequently,
appellants need not allege proximate cause with particularity. Furthermore, as appellants correctly assert, their
complaint need not meet evidentiary burdens of proof, like the
*55 standard identified in Pang v. Minch , to survive a motion to
dismiss. In Pang , the court discussed § 433B(1) and § 433B(2)
of the Restatement. Section 433B(1) provides as follows: “‘(1)
Except as stated in Subsections (2) and (3), the burden of proof
that the tortious conduct of the defendant has caused the harm
to the plaintiff is upon the plaintiff.’” Pang , 559 N.E.2d at
1324. [9] The court observed that § 433B(1)
“states the general rule as to the burden of proof on the issue of causation. As on other issues in civil cases, the plaintiff is required to produce evidence that the conduct of the defendant has been a substantial factor in bringing about the harm he has suffered, and to sustain his burden of proof by a preponderance of the evidence. This means that he must make it appear that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the harm.”
Id. , quoting 2 Restatement of the Law 2d, Torts 442, § 433B(1),
Comment a (1965). Based upon this provision of the Restatement, the
court held:
[W]here a plaintiff suffers a single injury as a result of the tortious acts of multiple defendants, the burden of proof is upon the plaintiff to demonstrate that the conduct of each defendant was a substantial factor in producing the harm. See Porterie v. Peters (1975), 111
Ariz. 452, 455 – 456,532 P.2d 514 , 517 – 518; Richardson v. Volkswagenwerk, A.G. (W.D.Mo.1982),552 F.Supp. 73 , 82 – 83. Once this burden has been met, a prima facie evidentiary foundation has been established supporting joint and several judgments against the defendants. Thereafter, the burden of persuasion shifts to the defendants to demonstrate that the harm produced by their separate tortious acts is capable of apportionment.
Id.
;
accord Nichols v. Hanzel
,
Dist.1996).
The
Pang
court held that the language in the Restatement
place[s] upon the plaintiff the burden to demonstrate
that he has suffered an injury and that the tortious act
of each defendant was a substantial cause in producing
that injury. Once this burden has been met, it is the
responsibility of the defendants to apportion the harm
if joint and several liability is to be avoided.
Pang
,
complaint must satisfy this evidentiary burden. Instead, the
plaintiff’s case in Pang was tried before a jury, and the
question on appeal concerned evidentiary burdens at trial, not
pleading burdens placed upon a plaintiff alleging that one or
more tortfeasors caused the plaintiff’s injuries. Furthermore, the Ohio Supreme Court later held that
“[t]he determination of whether an actor’s conduct was a
substantial factor in producing the plaintiff’s injury is a
question of fact to be determined by the trier of fact.” Queen
City Terminals
,
Gas Co.
,
syllabus. Consequently, based upon the foregoing reasons, in
the case sub judice we believe that the trial court incorrectly
determined that appellants’ complaint failed to sufficiently
allege proximate cause.
JOINT AND SEVERAL LIABILITY Appellees further assert that appellants’ complaint fails to give them adequate notice of the claims against them
because it lumps all appellees together rather than outline each
individual appellee’s purported wrongs. We do not agree. Ohio recognizes joint and several liability when the
negligence of two or more persons either combine or concur to
produce a single indivisible injury. See Schindler v. Std. Oil
Co.
,
(“Where two or more persons, under circumstances creating
primary liability, either, by a combination of their actions,
create a nuisance causing damage or, by their concurrent
negligence, directly produce a single indivisible injury, and
where it is impossible to measure or ascertain the amount of
damage created by any one of the persons, such persons, as
jointly and severally liable, may be joined as defendants in an
action, based upon such conduct, by one who has been damaged
thereby.”);
Glass v. McCullough Transfer Co.
,
506 (1953), paragraph four of the syllabus (“Where damage or
injury is proximately caused by independent but concurrent
wrongful acts of two or more persons, such wrongdoers may be
joined as defendants even though they did not act in concert in
the execution of a common purpose.”); Meyer v. Cincinnati St.
Ry. Co.
,
277, § 86 (4 Ed.) (“‘where the negligence of two or more persons
concur in producing a single, indivisible injury, then such
persons are jointly and severally liable, although there was no
common duty , common design or concerted action’”); see also
Larson v. Cleveland Ry. Co.
,
each of two railroads negligently manages its trains so as to
result in a collision, causing injury which results in death,
both may be joined as defendants in a single action”); Wery v.
Seff
,
(“When two or more persons, under circumstances creating primary
accountability, directly produce a single, indivisible injury by
their concurrent negligence, they are jointly and severally
liable, even though there is no common duty, common design or
concerted action.”); see generally Black’s (defining “the joint -
and- several liability doctrine” as “[t]he principle that when
two or more persons cause an injury, each is liable for the full
amount of damages”);
Pang
,
Restatement of the Law 2d, Torts 440, § 433A, Comment i (1965)
(“Where two or more causes combine to produce such a single
result, incapable of division on any logical or reasonable
basis , and each is a substantial factor in bringing about the
harm, the courts have refused to make an arbitrary apportionment
for its own sake, and each of the causes is charged with
responsibility for the entire harm.” [emphasis omitted.]) . In Schindler , for example, the plaintiffs filed a
complaint against five oil companies, among others, and alleged
that the oil companies allowed gasoline to escape from their
properties and contaminated the plaintiffs’ property.
Schindler
,
instituted against all those who, at various times, either by
their creation of a nuisance or as a result of negligence, both
in combination and severally, caused gasoline to permeate the
land of the plaintiffs and to pollute their wells”). The Ohio
Supreme Court determined that the plaintiffs’ complaint stated a
claim for joint and several liability when the complaint alleged
t hat the negligence of all “of the defendants caused a single
indivisible injury to plaintiffs.” Id. at 395. The court
further stated that a “reasonable inference” from the complaint
was that determining the amount of injury that “any single
defendant” ca used was not possible. Id. The court further
noted that in reviewing the sufficiency of the allegations, the
question was not whether the plaintiffs had “proof to establish
the claims” but whether the complaint adequately alleged joint
and several liability. Id. In the case before us, even if appellants’ complaint
does not echo the same language as Schindler , we believe the
complaint nonetheless contains sufficient allegations to
indicate that appellants are seeking to hold appellees jointly
and severally liable for their injuries. In fact, the complaint
alleges that appellees are “jointly and severally” lia ble.
Appellants have asserted their claims for relief against all
appellees because they essentially have alleged that appellees’
wrongful acts caused a single, indivisible injury to appellants.
At the very least, the complaint gives rise to a reasonable
inference that appellants have sufficiently alleged that
appellees are jointly and severally liable for appellants’
injuries. See generally Jackson v. Glidden Co. , 98 Ohio App.3d
100, 107 (8th Dist.1995) (“where the allegations of the
complaint are taken as true, the appellants’ amended complaint
states that the appellees committed tortious acts and that the
appellants were injured as the proximate result of those acts. .
. . The appellants have set forth sufficient allegations to
withstand a motion to dismiss, even though all potential
defendants have not been joined in the action.”). Consequently, we do not agree with appellees’
arguments that appellants must detail each appellee’s individual
wrongful conduct. Appellants did not allege that each appellee
engaged in separately identifiable conduct or that they have
caused separately identifiable injuries. Moreover, this appeal
involves 14 appellees, and 15 defendants remain named in the
complaint. If appellants were required to outline the same
claims 15 times when seeking to hold the defendants jointly and
severally liable for appell ants’ injury, the complaint could be
lengthy beyond reason. Furthermore, appellees’ argument defies
the principle that a complaint need only contain a short and
plain statement showing that the pleader is entitled to relief.
{¶86} We therefore do not agree with appellees that appellants’ complaint fails the notice -pleading test by alleging
that appellees are jointly and severally liable for appellants’
injury.
TRESPASS None of the parties raised any specific arguments on appeal regarding appellants’ trespass claim. Moreover, during
the trial court proceedings, appellees appeared to have argued
that appellants’ trespass claim fails to state a claim because
the complaint fails to establish (1) proximate cause between
appellants’ damages and appellees’ conduct, and (2) standing. On appeal, appellees likewise do not specifically
argue that the complaint fails to state a trespass claim and
limit their arguments to the proximate-cause and standing
issues. As we determined above, however, appellants’ complaint
adequately alleges that appellees’ conduct proximately caused
their injuries and sufficiently shows that appellants have
standing to sue.
{¶89} Furthermore, none of the appellees appear to dispute the principle that “a mineral owner may have a valid trespass
claim when the injected waste migrates across property lines and
unreasonably interferes with access to recoverable minerals,
such as oil and gas.” Anderson, Subsurface “Trespass”: A Man’s
Subsurface Is Not His Castle , 49 Washburn L.J. 247, 271 (2010);
see also Chance v. BP Chemicals, Inc.
,
26 (1996) (in a trial involving the “deepwell disposal of
wastes,” appellants attempted to establish an “indirect”
trespass, which “was complicated by the nature of the invasion
of property that appellants were attempting to prove”). Consequently, the trial court incorrectly dismissed
appellants’ trespass claim.
NUISANCE Appellants argue that the trial court incorrectly determined that their nuisance claim failed to state a claim
upon which relief can be granted. Appellants state that the
trial court wrongly determined that the complaint must allege
that appellees’ conduc t in creating a nuisance caused appellants
to suffer “physical discomfort.” Appellants contend that
damages for nuisance are not limited to those damages resulting
from physical discomfort. Appellants assert that the law of
nuisance also compensates property owners for the decrease in
the value of their property and for the loss of use and
enjoyment of their property. Appellants state that their
complaint alleged t hat appellees “have restricted and infringed
upon [appellants’] use and enjoyment of the [p]roperty, creating
a qualified nuisance for [appellants].” Tallgrass and JDDC maintain that appellants must
allege “physical discomfort” to properly plead a nuisance claim.
Tallgrass also reiterates a recurring theme: Appellants’
nuisance claim fails to detail how each appellee “intentionally,
reckless, or negli gently invaded [appellants’] interest in the
use and enjoyment of [their] property.”
“‘Nuisance’ is a term used to designate the wrongful invasion of a legal right or interest. It comprehends not only the wrongful invasion of the use and enjoyment of property, but also the wrongful invasion of personal legal rights and privileges generally.” Taylor v. Cincinnati (1944), 143 Ohio St. 426, 431 – 432,28 O.O. 369 ,55 N.E.2d 724 . For there to be an action for nuisance, the injury must be real, material, and substantial. Eller v. Koehler (1903), 68 Ohio St. 51, 55,67 N.E. 89 .
Banford v. Aldrich Chem. Co.
,
“qualified nuisance.” “[A] qualified nuisance or nuisance
dependent upon negligence consists of anything lawfully but so
negligently or carelessly done or permitted as to create a
potential and unreasonable risk of harm, which, in due course,
results in injury to another.” Taylor at paragraph three of the
syllabus. Thus, “‘a civil action based upon the maintenance of
a qualified nuisance is essentially an action in tort for the
negligent maintenance of a condition, which, of itself, creates
an unreasonable risk of harm, ultimately resulting in injury.’”
Allen Freight Lines, Inc. v. Consol. Rail Corp. , 64 Ohio St.3d
274, 275 – 76 (1992), quoting Rothfuss v. Hamilton Masonic Temple
Co.
,
value of the property, costs of repairs, loss of use of the
property, and compensation for annoyance, discomfort, and
inconvenience.” (Citations omitted.)
Banford
,
at ¶ 17. “Each of these elements of recovery represents a
separate and distinct type of damage, and the absence of one
does not preclude recovery for the others.” (Citations
omitted.) Athens Co. Regional Planning Comm. v. Simms , 2006-
Ohio-2342, ¶ 18 (4th Dist.); Phillips Petroleum Co. v. Ruble ,
personal inconvenience, annoyance, and discomfort to the
occupant of real estate caused by the maintenance by another of
a temporary nuisance in the immediate vicinity of said real
estate is a separate and distinct element of damage from that of
the depreciation of the usable or rental value of the real
estate occupied; the measure of such damages being reasonable
compensation for the injury.’”); accord Frey v. Queen City Paper
Co.
,
Petroleum with favor). If a plaintiff requests “damages for annoyance and
discomfort in a nuisance claim,” the “plaintiff must establish
that the nuisance caused physical discomfort.” Banford , 2010-
Ohio-2470, at ¶ 28. The Banford court explained that “[a]
physical component is implied in much of [the] case law that
discusses damages for annoyance and discomfort.” Id. at ¶ 26.
The court observed that cases have allowed annoyance and
discomfort damages for a nuisance when “the nuisance had
affected a person’s senses,” such as “ sight, sound, smell,
hearing, or touch,” and resulted in “physical discomfort.”
(Citations omitted.) Id. In the case at bar, appellants did not limit their
request for nuisance damages to annoyance and discomfort.
Instead, they also requested damages for the loss in value and
the loss of use and enjoyment of the property, among many other
types of losses. Thus, even if the complaint fails to give
appellees adequate notice that appellants suffered physical
discomfort, the absence of this allegation does not mean that
appellants’ complaint fails to state a nuisance claim.
Appellants’ complaint otherwise gives appellees adequate notice
that appellants are pursuing a nuisance claim and seeking
nuisance- related damages. Appellants’ complaint alleges that
appellees
failed to exercise due care and were negligent in the operation and/or maintenance of their Injection Wells so as to create a potential and unreasonable risk of harm that waste fluid would contaminate and pollute . . . [appellants’] Property, which in due course occurred and resulted in harm, injury, and/or damage to [appellants] and [appellants’] Prop erty.
Appellants’ nuisance claim thus alleges that appellees were
negligent and that this negligence created a potential and
unreasonable risk of harm that injured appellants’ property.
Taylor
,
Moreover, appellants’ negligence claim identifies more than 30
ways in which appellees were negligent. Allen Freight Lines , 64
Ohio St.3d at 275 –76. Contrary to Tallgrass’s argument,
appellants’ complaint need not precisely detail how each
individual appellee separately and “intentionally, reckless, or
negligently invaded [appellants’] interest in the use and
enjoyment of [t heir] property.” The complaint further claims that appellees’ wrongful
conduct has “restricted and infringed upon [appellants’] use and
enjoyment of the Property, creating a qualified nuisance for
[appellants].”
Appellants’ complaint also asserts that appellees’ Injection Well operations have imposed a nuisance upon [appellants] in the form of financial, environmental, and emotional hardship inasmuch as the [appellees’] Injection Well operations have overtaken and damaged gas and oil production on [appellants’] Pr operty with a toxic substance that is regulated under Ohio law to prevent human and environmental contact, thereby exposing [appellants’] Property, including but not limited to those impacted Bethel Wells, to additional regulatory requirements where said requirements would otherwise not have been imposed. The complaint additionally claims that (1) the
nuisance is ongoing, (2) the injury to appellants’ property is
likely permanent, and (3) appellees’ conduct is the proximate
cause of the injuries that they have sustained.
{¶99} In sum, appellants’ nuisance allegations suffice to state a claim upon which relief can be granted. See Ogle , 2008-
Ohio-7042, at ¶ 8 (4th Dist.) (complaint satisfied notice
pleading for nuisance claim when the plaintiffs claimed “that
the location, size, and appearance of the proposed
telecommunications tower would create a risk of physical harm
and cause diminution in the fair-market value of their
property”).
{¶100} Consequently, we agree with appellants that the trial court erred by dismissing their nuisance claim.
RES IPSA LOQUITUR Appellants argue that the trial court incorrectly dismissed their res ipsa loquitur claim. They contend that even
if res ipsa loquitur is not an independent cause of action, they
still were “free to notice that the evidence will satisfy the
res ipsa eleme nts.” Appellees assert that the trial court properly
dismissed this claim because the res ipsa loquitur doctrine is
not an independent cause of action, but an evidentiary rule. *70 “The doctrine of res ipsa loquitur is not a
substantive rule of law furnishing an independent ground for
recovery.” Jennings Buick, Inc. v. City of Cincinnati , 63 Ohio
St.2d 167, 169 (1980). Instead, the doctrine “is an evidentiary
rule which permits, but does not require, the jury to draw an
inference of negligence when the logical premises for the
inference are demonstrated.” Id. Thus, the doctrine “does not
alter the nature of the plaintiff’s claim in a negligence
action; it is merely a method of pro ving the defendant’s
negligence through the use of circumstantial evidence.” Id. at
170. A plaintiff must establish two elements for the res
ipsa loquitur doctrine to apply:
“(1) [t]hat the instrumentality causing the injury was, at the time of the injury, or at the time of the creation of the condition causing the injury, under the exclusive management and control of the defendant; and (2) that the injury occurred under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed.” Hake v. George Wiedemann Brewing Co. (1970),23 Ohio St.2d 65 , 66 – 67,52 O.O.2d 366 ,262 N.E.2d 703 ; Fink [ v. New York Cent. R. Co. ], 144 Ohio St. 1, 28 O.O. 550, 56 N.E.2d 456 [(1944)].
Estate of Hall v. Akron Gen. Med. Ctr.
,
the doctrine in order to invoke it,” and “specific allegations
of negligence in the complaint [do not] foreclose reliance upon
it.”
Jennings Buick
,
Cent. R. Co.
,
the petition and the proof in support thereof call for the
application of the rule it should be applied irrespective of
whether the petition contains allegations of specific acts of
negligence”). Additionally, nothing appears to prohibit a plaintiff
from pleading (1) a negligence claim using specific acts of
negligence, and (2) an alternative negligence claim using an
inference of negligence. See Honey v. George Hyman Const. Co. ,
plaintiff may always plead inconsistent causes of action or in
the alternative, and . . . may rely on both res ipsa loquitur
and proof of specific acts of negligence”); 70 Ohio Jur. 3d
Negligence § 157 (“Under the analogous Federal Rule, it is
permissible to plead both specific acts of negligence and res
ipsa loquitur although subsequent proof of such specific acts
would negate the possibility of recovery on a res ipsa loquitur
theory.”). Indeed, Civ.R. 8(E)(2) allows a plaintiff to “set
forth two or more statements of a claim . . . alternately or
hypothetically, either in one count . . . or in separate counts
. . .” In the case sub judice, appellants’ complaint sets
forth a negligence claim using specific acts of negligence. The
complaint’s “res ipsa loquitur” claim alleges the elements
needed to invoke the inference of negligence, but does not
present the claim as an alternate negligence claim. We
recognize that the res ipsa loquitur doctrine does not stand
alone as an independent cause of action. See Jennings Buick , 63
Ohio St.2d at 169. The proper remedy is not outright dismissal,
however. Instead, on remand, the trial court should allow
appellants an opportunity to amend their pleading to plead an
alternate negligence claim that invokes the inference of
negligence that the res ipsa loquitur doctrine provides. We
again note, however, that failing to plead a negligence claim
using the res ipsa loquitur doctrine does not preclude invoking
the doctrine at a later point in the proceedings.
CONVERSION *73 {¶108} Appellants also argue that the trial court incorrectly determined that their conversion claim failed to state a claim
upon which relief could be granted. Appellants contend that
“[t]he court’s findings on conversion ignore decisions
permitting mineral conversion claims and ignore the conversion
of [appellants’] well infrastructure (equipment, tools, casing,
etc.) that defendants have effectively converted into
repositories for their injected waste- fluids.” Appellees assert that appellants’ conversion claim
fails to allege that appellees converted appellants’ personal
property. They argue that appellants allege that appellees
converted appellants’ real property, i.e., their mineral estate.
Appellees thus co ntend that appellants’ conversion claim fails
to state a claim upon which relief can be granted. Conversion is “‘the wrongful exercise of dominion over
property to the exclusion of the rights of the owner, or
withholding it from his possession under a claim inconsistent
with his rights.’” Allan Nott Ents, Inc. v. Nicholas Starr
Auto, L.L.C.
,
Corp.
,
claim, a plaintiff must show: (1) ownership or right to
possession of the property at the time of the conversion; (2)
defendant’s conversion by a wrongful act or disposition of the
plaintiff’s property right, and (3) damages.” Bender v. Logan ,
Ins.
,
property, not real property. Sandy v. Rataiczak , 2008-Ohio-
6212, ¶ 9 (7th Dist.); First Fed. Bank v. Angelini , 2007-Ohio-
6153, ¶ 8 (3d Dist.); see also Ernst, Ohio Tort Law , 2d, § 37:1
(2023) (“Conversion is the intentional exercise of dominion or
control over a chattel which so seriously interferes with the
right of another to control it that the actor may be justly
required to pay the other the full value of the chattel.”) .
Minerals, like oil and gas, th at remain “in place are the same
as any part of the realty.” Pure Oil Co. v. Kindall , 116 Ohio
St. 188, 201 (1927); see also Peppertree Farms, L.L.C. v.
Thonen
,
Law of Oil and Gas , Section 38.2 (2021) (“‘it is generally
recognized that unaccrued royalty is properly classified as real
property, and the right to receive unaccrued royalty has been so
classified for a wide variety of purposes’”); Browne v. Artex
Oil Co. , 2019-Ohio- 4809, ¶ 22 (“Ohio is in line with the general
consensus among the states that an oil and gas lease creates a
real- property interest.”). Thus, subsurface minerals are
considered part of the real estate until extraction. Schlabach
v. Kondik , 2017-Ohio- 8016, ¶ 23 (7th Dist.). Minerals “become
personal property immediately upon severance.” Id. ; accord
Terteling Bros., Inc. v. Glander
,
(“Although lan d and minerals in place upon or beneath the land
are real property even though separately owned, the minerals
become personal property immediately upon severance.”); Yoder v.
Stocker & Sitler Oil Co.
,
26, 1996) (“upon its inevitable extraction, oil and gas becomes
personal property”); see also Waterloo Coal Co. v. Maynard , 1994
WL 675682, *4 (4th Dist. Nov. 8, 1994) (an action in trespass
lies for the wrongful removal of minerals or the wronged party
may sue for damages for conversion of the several minerals);
Athens & Pomeroy Coal & Land Co. v. Tracy
,
27 (4th Dist.1925) (a plaintiff may “sue for the damages
resulting from the conversion of the severed property. It is
the old action of trover. It presupposes the ownership by the
plaintiff of the article severed from the real estate, as though
the severance had been accomplished by the owner himself, and
rests upon the fiction that the defendant had found, or
otherwise became possessed of, such chattel, and unlawfully
converted the same to his own use”). In the case at bar, appellants allege that appellees
converted appellants’ mineral reservoirs and have “interfered
with” appellants’ “dominion and/or control over the Bethel Wells
and [appellants’] chattel property” that they use “in connection
with the op eration of the Bethel Wells.” To the extent that appellants have alleged conversion
of their mineral estate, which Ohio law considers to be real
property, their conversion claim fails to state a claim upon
which relief can be granted. Appellants’ conversion claim also
references “chattel property,” however. Thus, to the extent
that appellants allege that appellees have converted their
personal property, their conversion claim states a claim upon
which relief can be granted. Given that we must construe
appellants’ complaint so as to d o substantial justice, Civ.R.
8(F), we believe that it arguably states a claim for conversion
of their personal property. Therefore, the trial court erred by
dismissing appellants’ conversion claim.
EMOTIONAL DAMAGES Within their second assignment of error, appellants assert that the trial court incorrectly dismissed their claims
for emotional damages and should have instead allowed them to
amend their pleading. For ease of discussion, we address the
issue within the context of appellants’ first assignment of
error. In their complaint, appellants listed all of the
damages that they collectively suffered as a result of
appellees’ alleged negligence, negligence per se, nuisance,
conversion, and trespass under one heading rather than stating
the damages within the context of each claim for relief. Some
of the claimed damages include (1) “inconvenience, distress,
anxiety, and/or emotional and mental anguish,” (2)
“inconvenience and discomfort caused by interference with the
peaceful possession and enjoyment of” their prop erty, (3)
“discomfort and annoyance related to the loss of use and/or loss
of enjoyment and/or contamination of the Property, and/or” (4)
“loss of the quality of life [appellants] otherwise enjoyed.” *78 Appellees argue that the trial court correctly
dismissed appellants’ request for damages stemming from these
emotional harms because, as a business entity, Bethel Oil cannot
recover emotional damages. Even if appellees are correct that a business entity,
such as Bethel Oil, cannot recover damages for emotional harm,
see Patel v. AT&T
,
(“it affronts common sense to believe a corporation can suffer
emotional distress”), appellants’ listing of the damages that
they suffered is not a “claim for relief” subject to dismissal.
Instead, each item of alleged damages relates to one of the
causes of action listed in the preceding sections of the
complaint. Thus, appella nts’ alleged damages are elements of
the claims for relief, not independent claims for relief. See,
e.g., Cromer v. Children’s Hosp. Med. Ctr. of Akron , 2015-Ohio-
229, ¶ 23, citing Menifee v. Ohio Welding Products, Inc. , 15
Ohio St.3d 75, 77 (1984) (damages are one of the elements of a
negligence cause of action); RAE Assocs., Inc. v. Nexus
Communications, Inc.
,
are one of the elements of conversion cause of action); see
generally Binns v. Fredendall
,
(“the emotional or psychiatric injuries which have arisen as a
proximate result of the defendant’s tortious act are compensable
under the traditional rule for recovery”). Because damages are
not an independent cause of action, the proper remedy was not to
dismiss appellants’ “claims” for emotional damages. Instead, as
we explain in our discussion of appellants’ second assignment of
error, the trial court should have permitted appellants to amend
their complaint to correct any ambiguity regarding their request
for emotional damages.
CONCLUSION In sum, we believe that appellants’ complaint does not fail to state a claim. The complaint gives appellees sufficient
notice that appellants are alleging that appellees’ well -
injection operations have contaminated their mineral estate.
Furthermore, even if appellants’ complaint “could have been
written more artfully, . . . the degree of detail demanded by
[appellees] would require litigants to write a book when filing
legal actions.”
Sacksteder
,
12(B)(6) motion is viewed with disfavor, rarely granted, and
reserved for those rare cases that cannot possibly succeed.
Wilson, supra ; Tri – State Computer Exchange, supra . The case sub
judice is not one of those cases.
{¶120} Accordingly, based upon the foregoing reasons, we sustain appellants’ first assignment of error.
II In their second assignment of error, appellants assert that the trial court abused its discretion when it denied their
motion to amend their complaint. “The decision of whether to grant a motion for leave
to amend a pleading is within the discretion of the trial
court.”
Turner v. Cent. Local School Dist.
,
99 (1999). “‘[A]buse of discretion’ [means] an ‘unreasonable,
arbitrary, or unconscionable use of discretion, or * * * a view
or action that no conscientious judge could honestly have
taken.’”
State v. Kirkland
,
v. Brady , 2008-Ohio- 4493, ¶ 23. “An abuse of discretion
includes a situation in which a trial court did not engage in a
‘“sound reasoning process.”’”
State v. Darmond
,
¶ 34, quoting
State v. Morris
,
AAAA Ents., Inc. v. River Place Community Urban Redevelopment
Corp.
,
standard is deferential and does not permit an appellate court
to simply substitute its judgment for that of the trial court.
Darmond at ¶ 34. “The general policy of Civ.R. 15(A) favors liberal
amendment of pleadings.” State ex rel. Reese v. Ohio Dept. of
Rehab. & Correction Legal Dept.
,
Cleveland Metroparks
,
“mandate[s] that courts ‘shall freely give leave [to amend a
pleading] when justice so requires,’” and the Ohio Supreme Court
has a “liberal position on amendments”). Indeed,
[t]he spirit of the Civil Rules is the resolution of
cases upon their merits, not upon pleading deficiencies.
Civ.R. 1(B) requires that the Civil Rules shall be
applied “to effect just results.” Pleadings are simply
an end to that objective. The mandate of Civ.R. 15(A)
as to amendments requiring leave of court, is that leave
“shall be freely given when justice so requires.”
Peterson v. Teodosio
,
by denying a timely filed motion for leave to file an amended
pleading when the amendment would allow the pleading party to
“set forth a claim upon which relief can be granted.” Id.
Conversely, a trial court does not abuse its discretion by
denying a party leave to file an amended pleading when amending
the pleading “would be futile.” State ex rel. McDougald v.
Greene
,
Am. Ins. Co.
,
Steel Prods., Inc. v. Cleveland Elec. Illum. Co. , 60 Ohio St.3d
120, 123 (1991) (“[W]here a plaintiff fails to make a prima
facie showing of support for new matters sought to be pleaded, a
trial court acts within its discretion to deny a motion to amend
the pleading.”). Additionally, the Ohio Supreme C ourt has
indicated th at “‘absent a finding of bad faith, undue delay or
undue prejudice to the opposing party,’” a court should grant a
motion for leave to amend. State ex rel. Doe v. Capper , 2012-
Ohio-2686, ¶ 8, quoting
Hoover v. Sumlin
,
(1984). In the case sub judice, as we discussed under
appellants’ first assignment of error, the trial court, at
appellees’ insistence, required appellants to meet a heightened
pleading standard that does not exist under Ohio Supreme Court
case law. Ohio’s notice -pleading standard does not require
appellants to allege particularized facts and does not, as
appellees insinuate, require appellants to cite the evidence to
support each claim for relief. Thus, as we stated above, the
trial court erred by dismissing appellants’ complaint. To the
extent that appellants’ complaint contains pleading deficiencies
that we discussed above, on remand, the trial court should allow
appellants an opportunity to amend their complaint. At this
stage, nothing appears to indicate that to allow appellants to
amend their complaint would be futile. [10] As we suggested above, appellants’ complaint need not
resemble a scientific textbook full of facts, figures, and
expert testimony. Instead, Civ.R. 8(A) simply requires a short
and plain statement showing that appellants are entitled to
relief. Thus, on remand, to the extent appellants request leave
to amend their complaint, the amended complaint need not include
the level of detail that appellees have demanded throughout
these proceedings.
*84 Given that we have sustained appellants’ first assignment of error and agreed that the trial court erred by
dismissing appellants’ complaint, we believe that appellants’
second assignment of error largely is moot. Because appellants’
initial complaint sat isfies Ohio’s notice -pleading standard, as
we discussed above, appellants need not file an amended 63-page
complaint that contains detailed factual allegations. To the
extent any ambiguities exist regarding appellants’ conversion
claim and request for emotional damages, as we discussed above,
the trial court should give appellants an opportunity to amend
their complaint (and again, it need not include detailed factual
allegations). Additionally, if any doubt remains regarding
appellants’ pleading burden, we emphasize that on remand, the
liberal pleading rules that we outlined in this opinion govern,
not the heightened pleading standard that appellees cited in
their motions to dismiss and appellate briefs. Further, we
caution appellees not to present the trial court with misleading
case quotations when precedent from the Ohio Supreme Court is
available, as it widely is for Civ.R. 12(B)(6) motions to
dismiss. Notably, appellees also do not cite any case authority
from this court to support their heightened pleading standard. Accordingly, based upon the foregoing reasons, we
overrule appellants’ second assignment of error as moot, reverse
the trial court’s judgment, and remand this matter for further
proceedings consistent with this opinion.
JUDGMENT REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
JUDGMENT ENTRY It is ordered that the judgment be reversed and remanded for further proceedings consistent with this opinion.
Appellants shall recover of appellees the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington County Common Pleas Court to
carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Wilkin, J.: Concur in Judgment & Opinion For the Court BY:__________________________ Peter B. Abele, Judge
NOTICE TO COUNSEL *87 Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.
APPENDIX MOTIONS TO DISMISS Diversified Diversified, Nuverra, Heckmann, Deeprock Operating,
Deeprock Disposal, Brian Chavez, and Christyann Heinrich-Chavez
(Diversified/Deeprock) filed a joint motion to dismiss. They
argued that although appellants alleged that
Diversified/Deeprock “operate inj ection wells somewhere in
Washington County or Athens County, Ohio,” the complaint does
not further specify underlying facts to connect
Diversified/Deeprock’s operations with any of appellants’
alleged damages. Diversified/Deeprock claimed that the
compla int does not reveal “which of their injection wells, if
any, allegedly damaged which of [appellants’] property
interests.” Diversified/Deeprock also contended that appellants’
complaint fails to allege sufficient operative facts to give
them notice of the nature of the action. They argued that “[t]o
constitute fair notice, [appellants] must allege sufficient
underlying facts that relate to and support the alleged claim
and may not simply state legal conclusions.” They additionally
asserted that notice pleading does not “eliminate the need for a
properly researched and factually supported cause of action.”
Bratton v. Adkins
, 9th Dist. Summit No. 18136,
*1, citing Matter of Oak Creek Florists (S.D.Ohio 1988), 86 B.R.
531. Diversified/Deeprock argued that appellants’ complaint
does not contain “sufficient underlying facts” to give them
notice of “the basic ‘who’, ‘what’, ‘when’, and ‘where’ so they
may know at least the bare minimum about the claims against
them.” Diversified/Deeprock further asserted that (1) res
ipsa loquitur is not a separate cause of action, (2) appellants’
conversion claim fails to state a claim because Ohio law does
not recognize conversion of real property, and (3) Ohio law does
not recognize claims for a business entity’s emotional damages,
and thus, “any claims asserted by Bethel Oil & Gas, LLC for
‘emotional damages’ must be dismissed.”
Redbird Redbird argued that appellants lack standing because they did not “allege ownership of any of the mineral interests”
that Redbird supposedly damaged. Redbird claimed that the
complaint does not (1) identify any of the appellants “as the
actual owner” of the mineral interests or (2) “plead an actual
injury sufficient to establish standing.” Redbird contended
that “[b]ecause no [appellant] is identified as the actual owner
of the allegedly damaged mineral interests, no [appellant] has
suffered an injury in fact; thus, no [appellant] has standing to
bring this action.” Redbird further argued that appellants’ complaint
contains “opaque allegations” that “fall short of Ohio liberal
pleading standards.” Redbird claimed that appellants
essentially alleged only “that someone somehow damaged something
that [appellants] may or may not own” and that the allegations
thus fail to satisfy notice-pleading standards. Redbird also asserted that appellants’ complaint does
not set forth facts to establish a link between appellants’
alleged injuries and Redbird’s conduct. Redbird contended that
the complaint does not state what property has been damaged or
“how and when the property was damaged.” Redbird alleged that
aside from the B.P. Pinkerton #1 well, Redbird does “not know
which of its injection wells allegedly damaged which of
[appellants’] properties.” Redbird faulted appellants for
failing to “plead a connection between any specific property
interest and an alleged source of the tortious conduct.”
Redbird stated that appellants’ “scattershot approach does not
satisfy basic notice pleading as it fails to identify the basic
‘who’, ‘what’, ‘when’, and ‘where’ so that [appellees] may know
at least the bare minimum regarding the claims against them.” Like the other defendants, Redbird also argued that
(1) res ipsa loquitur “is not a cognizable claim under Ohio law,
but only an evidentiary rule,” (2) appellants’ “conversion claim
fails because any mineral interests alleged to be owned by
[appellants] are interests in real property, not personal
property,” and (3) a business entity like Bethel Oil cannot
recover emotional damages.
Reliable In its motion to dismiss, Reliable asserted that appellants’ complaint only named one of its wells, the “Frost M”
well, and that this well “has not been active in over a year.”
Reliable additionally argued that “public records show that this
well in Rome Township, Athens County, is the only disposal well
Reliable owns in Ohio” and that this well is “more than thirteen
miles from any of the Bethel Oil wells listed in the Complaint.” *92 Reliable implored the trial court to evaluate
appellants’ complaint under the standard set forth in Twombly .
Reliable contended that Ohio’s “liberal pleading rules are not
an all-access pass to plaintiffs, allowing them to escape any
scrutiny at the motion to dismiss stage and proceed straight to
discovery.” Instead, Reliable asserted that under Twombly ,
“[t]he factual allegations in the complaint must be sufficiently
detailed to provide a ‘plausible’ basis for relief.” Reliable
claimed that appellants’ complaint “fails this test for two
reasons. First, it fails to plausibly allege that wastewater
from Reliable’s distant disposal well reached [appellants’]
production wells. And second, it asserts claims that are
preempted by statute or are not recognize d under Ohio law.” Reliable argued that appellants’ complaint “does not
provide any factual support.” Reliable faulted appellants for
failing to include facts such as “the geology of the area around
Reliable’s Frost M well to try to show that it shares similar
features to t he Redbird #4 well” or to list “specific practices
or defects at the Frost M well that might allow wastewater to
escape containment.” Reliable asserted that the ODNR report
“found that the production contamination was due to unique
geology around Redbird #4” and that this same geology “was
unlikely to be found near other local disposal wells.” Reliable additionally asserted that the complaint
failed to “explain how wastewater could migrate thirteen miles
or more across county lines to affect [appellants’] wells.”
Reliable claimed that appellants did not allege “facts
sufficient to plausibly support the claim that wastewater from
Reliable’s well entered any of its production wells.” Reliable
thus argued that appellants’ complaint does not allege
sufficient facts to indicate that appellants’ “injuries were
caused by Reliable’s actions (negligence , negligence per se, and
nuisance)” or “that Reliable intruded on its interests
(trespass).” Reliable suggested that appellants have taken a
“shotgun approach to litigation” by “target[ing] all area
disposal well operators no matter how minor their role in the
industry.” Reliable further contended that appellants’
“negligence per se claim is preempted by statute.” Reliable
claimed that the statutory provisions do not create a private
right of action.
{¶142} Reliable also argued that (1) Ohio law does not recognize conversion claims for real property such as
appellants’ mineral estate, (2) appellants’ res ipsa loquitur
allegation is not an independent cause of action, (3) “damages”
are not a cause of action, and (4) a business entity cannot sue
for emotional damages. Reliable attached to its motion to dismiss a copy of
the ODNR investigative report. Reliable argued that because
appellants’ complaint cited this report, appellants essentially
incorporated the entire report into their complaint. Reliable
thus asserted that the trial court could consider the report
when ruling on its motion to dismiss.
Tallgrass Tallgrass asserted that appellants “have not made a plausible allegation that Tallgrass was the proximate cause of
any wastewater damage to [appellants’] oil and gas wells.”
Tallgrass faults appellants for failing “to distinguish between
[appellees] or [a ppellees’] conduct.” And like Redbird,
Tallgrass argued that appellants “simply allege that someone,
somehow caused wastewater to damage wells.”
{¶145} Tallgrass cited a 1991 Ohio Supreme Court case involving one of the exceptions to Ohio’s notice -pleading rules —
Byrd v. Faber
,
assertion that appellants “‘must plead the operative grounds
relating to a claim for relief.’ Id. ” Tallgrass did not point
out, however, that the Ohio Supreme Court has not applied this
“operative grounds” rule to all civil pleadings. Moreover, Tallgrass cited a concurring justice’s
opinion to support the proposition that “Ohio courts have made
clear that mere speculation, unsupported by operative facts, is
not enough to state a claim” under Ohio’s notice -pleading
standard. Maternal Grandmother v. Hamilton Cnty. Dept. of Job &
Family Servs. , 2021-0hio-4096, ¶ 18 (Dewine, J., concurring).
Tallgrass did not point out, however, that the majority opinion
in Maternal Grandmother reaffirmed Ohio’s liberal, notice -
pleading rule and did not state that a complaint must allege
“operative facts” to satisfy Ohio’s notice -pleading standard. Tallgrass likewise cited several Ohio appellate court
cases — none from this district — endorsing what arguably might be a
heightened pleading standard.
{¶148} Tallgrass additionally characterized appellants’ complaint as a “shotgun” pleading and cited federal district
court decisions that suggest that “pleadings that attempt to
hold different defendants accountable for each other’s acts
without ever alleging spe cifically what any one of them did” are
invalid. Tallgrass also asserted that appellants’ negligence
claims contain “nothing but speculation, conjecture, and
inference stacking.” Tallgrass argued that appellants “not only
fail to put [appellees], including Tallgrass, on proper notice
for what conduct allegedly harmed what property, but also engage
in rank speculation over whether there is any wrongful conduct
on the part of Tallgrass and the other [appellees].” Tallgrass further claimed that appellants’ complaint
fails to allege facts to establish that Tallgrass’s conduct was
a proximate cause of appellants’ alleged damages. Tallgrass
contended that if appellants had focused on each defendant’s
activities indivi dually rather than all of the defendants’
activities collectively, appellants “would have noticed that
many miles, other injection wells, and unaffected oil and gas
wells — including those owned by [appellants] — fall between
Tallgrass’s injection wells and [appellants’] allegedly injured
wells.” Tallgrass argued that appellants thus failed to
plausibly allege that Tallgrass was “the proximate cause of any
wastewater damage to [appellants’] oil and gas wells.” Tallgrass
contended that the complaint does not allege a reasonable
connection between their conduct and appellants’ damages.
Tallgrass asserted that appellants’ allegation that Tallgrass
“committed ‘one or more’ of thirty -three types of conduct, at
some unspecified time, cannot establish causation between
Tallgrass’s actions and [appellants’] alleged property damage.”
Tallgrass stated that appellants failed “to meet their burden
for showing Tallgrass proximately caused the harm described in
the Complaint.” In addition, Tallgrass argued that appellants’
nuisance claim fails to state a claim upon which relief can be
granted because appellants have not alleged “physical
discomfort.” And like the other defendants, Tallgrass asserted
that (1) res ipsa loquitur is not a cause of action, (2)
appellants’ conversion claim fails to allege that Tallgrass
converted personal property, and (3) a business entity, like
Bethel Oil, cannot recover emotional damages. [11] Tallgrass also referred to the ODNR report and
asserted that the trial court could consider it because
appellants’ complaint cited it.
Appellants’ Responses In response to Diversified/Deeprock’s motion to dismiss, appellants argued that their complaint “carefully
alleges that each of these [appellees] similarly inject large
volumes of toxic wastewater into subsurface formations that are
understood, and have been demonstrated, to allow for wastewater
exfiltration, migration, and destructive contamination of
shallower subsurface zones, including the Berea sandstone
formation and the areas within it where [appellants] lawfully
produce, and/or have the rights to produce, and market their
mineral interests.” Appellants stated that the complaint
“alleges that the nature of [appellees’] injection operations
*99 has contaminated these shallower zones and damaged the
commercial value of [appellants’] property interests.” Appellants asserted that the complaint mentions the
ODNR report to establish “documented occurrence of this
phenomenon in the area where, and under the conditions in which,
[appellees] inject provides foundational notice that these
allegations are not being made upon bare speculation or mere
conjecture.” Appellants claimed that “supporting evidence of
[appellees’] wrongful contamination, as alleged, can and will be
advanced at trial.” In response to Redbird’s motion to dismiss, appellants
asserted that despite Redbird’s claim that appellants’ complaint
is too opaque, Redbird had no trouble “describ[ing] exactly what
it is [Redbird is] accused of in [its] Motion” to dismiss.
Appellants contended that their “claims are straightforward” and
that their complaint “carefully alleges that each of these
[appellees] similarly inject large volumes of toxic wastewater
into subsurface formations that are understood, and have been
demonstrated, to allow for wastewater exfiltration, migration,
and destructive contamination of shallower subsurface zones,
including the Berea sandstone formation and the areas within it
where [appellants] lawfully produce, and/or have the rights to
produce, and market their mineral interests.” The complaint
further alleges that “the nature of [appellees’] injection
operations has contaminated theses shallower zones and damaged
the commer cial value of [appellants’] property interests.” In response to Reliable’s motion, appellants argued
that their complaint satisfies Ohio’s notice -pleading standard.
Appellants did not agree with Reliable that the complaint must
“detail the geology of the area around Reliable’s wells to try
to show that it shares similar features to Redbird #4, or
discuss specific practices or construction defects at its well
that allows wastewater to escape confinement, or explain how
wastewater could migrate nine miles or more across county
lines.” Appellants instead asserted that these “factual issues
[are] appropriately addressed through discovery, not [Civ.R.]
12(B)(6).” Appellants additionally contended that the court
should not rely upon evidence outside of the complaint.
Appellants stated that their “allegations stand on their own”
and do not require incorporating the ODNR report. Appellants
also claimed that Reliable misrepresented some of the language
used in the report.
{¶158} Appellants argued that their conversion claim involves “personal property in the form of the equipment they utilize to
extract gas and oil from their wells and the revenue generated
from such efforts.” Appellants disagreed that res ipsa loquitur and
damages cannot be the subject of a separate section of the
complaint. Appellants further asserted that they could cure any
deficiencies by filing an amended complaint. Appellants also
pointed out that Reliable did not have any trouble summarizing
the nature of appellants’ claims against it and presenting a
“factual rebuttal.” In response to Tallgrass’s motion to dismiss,
appellants asserted that the complaint “plausibly alleges that
Tallgrass has contaminated [appellants’] wells and damaged their
property interests by injecting wastewater within sufficient
proximity to damage it and at depths, into geologic substrata,
and under circumstances that have been causally linked to such
contamination, and [appellants] are not required to detail the
finer points of Tallgrass’ operations that it already knows to
plausibly plead their case.”
Appellees’ Replies Diversified/Deeprock argued that appellants did not refute any of the following: (1) “[t]he alleged findings of the
ODNR report referenced in the Complaint do not mention or even
allude to [Diversified/Deeprock’s] wells”; (2) “[t]he sole
allegation against [Diversified/Deeprock] connecting them to
[appellants’] alleged injury is that they have injection wells
somewhere in Washington and Athens counties”; (3) “[t]he
Complaint against [Diversified/Deeprock] is based solely on
conjecture from an ODNR report that has nothing to do with
[Diversified/Deeprock].” Diversified/Deeprock contended that appellants’
complaint contains “bare assertions” that “are nothing more than
legal conclusions couched as factual statements.”
Diversified/Deeprock argued that “the findings of a single ODNR
report that does not even re ference [Diversified/Deeprock’s]
wells” are not operative facts to support the allegation that
“every single injection well across two counties” has injured
appellants. Diversified/Deeprock claimed that appellants’ “wild
and speculative extrapolation of the ODNR report to conclude
that injection wells across two counties have purportedly
injured them is the exact type of conjecture that is precluded
by even Ohio’s liberal pleading standards.” Redbird reiterated its argument that appellants have
not alleged sufficient facts to establish standing. Redbird
claimed that appellants did not allege which appellant owns the
mineral interest, so they have not alleged a concrete and
particularized injury. Redbird further asserted that
appellants’ complaint does not allege what property Redbird
purportedly damaged, how the property was damaged, and when the
property was damaged. Reliable replied that it “can do little
more than guess what [appellants] think Reliable did wrong or
carelessly.” Tallgrass argued that the court can consider the ODNR
report and the geographic location of the wells as shown on the
ODNR website. Tallgrass asserted that appellants’ allegation,
“Upon information and belief, . . . it is reasonably certain
that each and all of the herein-named Defendants have similarly
contaminated and polluted the Berea Sandstone and/or other gas
and oil reservoirs in Washington and/or Athens County and
damaged [appellants’] Property and their Property right,” “is
nothing but a conclusory allegation and is no bar to dismissal
of a complaint.” Tallgrass observed that appellants claimed
that “supporting evidence of Tallgrass’ wrongful contamination,
as all eged, can and will be advanced at trial.” Tallgrass
stated that if appellants “have such evidence, it must at least
be referenced or explained in the Complaint.”
THE TRIAL COURT’S DECISIONS Redbird On January 3, 2023, the trial court granted Redbird’s
motion to dismiss. The court noted that appellants’ complaint
alleged that Redbird’s “actions or inactions” have contaminated
appellants’ property and have harmed appellants’ “efforts for
‘further development of gas and oil’ in the future.” The court
found, however, that appellants’ complaint failed “to identify
who owns the minerals that have been damaged in order to
establish who has standing to sue.” The court observed that appellants’ complaint arose
out of an ODNR investigation that involved one of appellants’
wells, “the B.P. Pinkerton #1 well.” The court stated that the
investigation found that contaminated water from Redbird’s #4
well was responsible for the damage to appellants’ B.P.
Pinkerton #1 well.
{¶167} The court determined that appellants’ complaint did not give Redbird “notice as to which other wells they allegedly
damaged, when they damaged them[,] or how they damaged them.”
The court further determined that appellants did not “establish
proximate cause between any additional damages to any other
wells” and Redbird.
{¶168} With respect to appellants’ claim involving res ipsa loquitur, the court found that this claim is not a separate
cause of action, but rather, it is an evidence rule that permits
an inference of negligence.
{¶169} As to appellants’ conversion claim, the court recited case law that stated that conversion involves personal property
and that an oil and gas lease creates an interest in real
property. Regarding appellants’ claim for emotional damages, the
court noted that this claim related “to both Bethel Oil & Gas
LLC and the Lane Plaintiffs.” The court quoted case law
indicating that corporations cannot suffer emotional distress. The court then granted Redbird’s motion to dismiss.
Tallgrass On January 4, 2023, the court granted Tallgrass’s motion to dismiss. The court found that appellants’ complaint
does not allege “specific facts that tie [Tallgrass] to either
the Redbird #4 well or to the damages” that appellants claim to
have sustained. The court determined that the complaint “lacks
proximate cause connecting” Tallgrass to appellants’ injuries.
The court recited the elements necessary to establish negligence
and stated that the proximate-cause element requires a plaintiff
to “allege ‘so me reasonable connection between the act or
omission of the defendant and the damage the plaintiff has
suffered.’” Tallgrass decision at 1 -2, quoting Queen City
Terminals
,
nuisance claim, appellants must establish that the nuisance
caused physical discomfort. The court stated that “‘the law
does not declare a thing a nuisance because * * * the property
of another is rendered less valuable.’” Id. at 2, quoting
Schoenberger v. Davis , 8th Dist. Cuyahoga No. 45611, 1983 WL
5501, *6 (June 23, 1983). The court did not provide any
additional analysis.
{¶174} Next, the court stated that appellants’ res ipsa loquitur is not a separate cause of action.
{¶175} With respect to appellants’ conversion claim, the court stated that real property ordinarily is not subject to
conversion. Instead, the court stated that a conversion claim
requires a taking of identifiable personal property. The court
found that appella nts’ conversion claim alleges that Tallgrass’s
conduct has “damaged the recovery of minerals from the real
property involved herein” and that their complaint does not
contain any allegations that Tallgrass has converted appellants’
personal property. As to appellants’ emotional -damages claim, the court
found that business entities cannot recover emotional damages.
The court thus granted Tallgrass’s motion to dismiss appellants’
complaint.
Diversified/Deeprock On January 9, 2023, the court granted Diversified/Deeprock’s motion to dismiss. The court stated that
appellants did not give Diversified/Deeprock notice “as to what
property they have damaged, when the property was damaged, who
actually damaged what property nor whether the property damaged
was held in fee simple or were leased mineral rights.” The
court further found that appellants did not “provide[]
sufficient proximate cause connecting” Diversified/Deeprock to
their alleged injuries.
{¶178} The court stated that res ipsa loquitur is not a separate cause of action, appellants’ conversion claim does not
involve personal property, and appellants cannot assert a claim
for damages for emotional distress to a business entity. The
court thus grante d Diversified/Deeprock’s motion to dismiss.
Reliable On January 9, 2023, the trial court granted Reliable’s motion to dismiss. The court found that “Reliable’s sole well
is located more than thirteen miles away from any of the Bethel
oil wells listed in the Complaint.” The court determined that
appellants’ complaint “does not contain any specific factual
allegations that specifically relate to” Reliable’s wells and
that appellants “have failed to establish proximate cause
connecting” Reliable to appellants’ alleged injuries. The court additionally concluded that real property is
not subject to a conversion claim, res ipsa loquitur is not a
separate cause of action, and business entities cannot recover
damages for emotional distress. The court thus granted
Reliable’s motion to dismiss.
JDDC’s Motion to Dismiss {¶181} After the trial court granted the foregoing motions to dismiss, JDDC filed a motion to dismiss. JDDC raised similar
arguments to the other defendants. On March 1, 2023, the court granted JDDC’s motion to
dismiss. The court stated that appellants did not “identify who
owns the mineral rights that have been damaged in order to
establish who has standing to sue” and the complaint did not
indicate “what cla im for damages Plaintiff Sandra K. Lane may
have.” The court further determined that appellants’ complaint
does not give JDDC “notice of what wells they have damaged, when
they were damaged or how [JDDC] are connected to the damaged
wells.” The court sta ted that the complaint does not contain
any “factual allegations with regard to” JDDC, and the complaint
fails “to establish proximate cause.” The court further found that appellants’ complaint
fails to allege that they have suffered physical discomfort to
support their nuisance claim, res ipsa loquitur is not a
separate cause of action, real property is not subject to a
conversion claim, and business entities cannot recover damages
for emotional distress. The court granted thus granted JDDC’s
motion to dismiss.
APPELLATE ARGUMENTS Appellants Appellants argue that their complaint adequately
notifies appellees of the claims raised against them and that it
does not fail to state a claim upon which relief can be granted.
Appellants assert that the complaint and the proposed amended
complaint alle ge the following: (1) “each defendant group owns
and operates certain, specifically-identified injection wells to
inject waste fluids into the ground”; (2) appellees’ “injection
operations have damaged development of the mineral interest by
flooding the gas and oil reservoirs in areas where Bethel has
exclusive mineral rights”; (3) appellees “have collectively
injected a cumulative volume of waste fluids under circumstances
that allows for miles of horizontal and lateral movement of
these fluids”; (4) appellees “inject millions of barrels of
wastewater annually into the exact geographic area where these
waste fluids are surfacing and where [appellees] have exclusive
ownership of certain of the mineral acreage”; (5) appellees’
“injection wells maintain continuous injection intervals in this
precise geographic area that promote upwards surface migration
of waste fluids”; (6) appellees “inject in ways that violate
regulations and promote migration”; (7) “the wrongful conduct of
the other defendants combined to cause the harm to certain,
specifically enumerated mineral acreage;” and (8) appellees’
“operations have damaged and continue to damage [appellants’]
business revenue and economic interests in the development of
their mineral estate and jeopardize the leasehold itself as a
consequence of regional, waste-fluid flooding of the
subsurface.” Appellants argue that the amended complaint further
outlines “where the defendants inject, the years they have been
injecting, the damaging manner in which they inject, the volumes
they have injected to date, the specific depths and subsurface
formations they have flooded, how their injection patterns have
increased over time, and their collective injection of nearly
three billion gallons of waste fluid into porous substrata in
the last decade alone.” Appellants assert that “Ohio law makes
the alleged damages actionable whether tortuously [sic] done by
one or by many.” *112 Appellants contend that the trial court incorrectly
dismissed the complaint based upon its finding that appellants
had not established proximate cause between each defendant and
the damaged Bethel wells. Appellants claim that the court
imposed a heightened pleading burden on appellants that Ohio law
does not support. Appellants note that the court found that
appellants’ complaint did not give appellees notice “as to which
wells [appellees] allegedly damaged, when they damaged them or
how they damaged them .” Appellants claim that the trial court
“misapprehend[ed] the actionable character of the damage being
to the mineral estate as a whole.” They assert that the court’s
decision contravenes the “express allegation that the entirety
of the enumerated mineral acreage can no longer be developed,
commercialized, or liquidated as a consequent of [appellees’]
collective, regional flooding of the subsurface.” Appellants
contend that the pleading standard does not require them “to
connect the dots to each contami nated well.” Appellants contend
that “[t]he Bethel wells are a part of the damaged property, but
primarily as a conduit for commercial production of the mineral
estate.” Appellants allege that “[r]equiring [appellants] to
connect all the dots between each injection well and each
flooded gas well to bring a case for combined harm to
development of the mineral estate imposed an impermissible,
irrelevant, impossible-to- meet standard on [appellants’] case.”
{¶187} Appellants argue that appellees’ arguments that appellants must connect each injection well to specific damage
to one of the Bethel wells is “exceedingly factual in nature,
requiring discovery and Rule 56 analysis even if [appellants’]
case was confined to the Bethel wells.” Appellants claim that
“the trial court essentially held [appellants] to an evidentiary
standard at the pleadings stage by requiring them to ‘establish
proximate cause’ between each specific well or acre.” Appellants assert that the trial court’s remaining
findings regarding standing, nuisance, res ipsa loquitur,
conversion, and emotional damages are not sufficient to dismiss
appellants’ complaint. Appellants contend that to the extent
that any pleading deficiencies existed, the trial court should
have granted their motion to amend the complaint. Regarding standing, appellants argue that the
complaint identifies appellants as Bethel Oil, a small business,
Robert Lane, the owner of Bethel Oil, and Sandra Lane, who
jointly own property.
{¶190} As to their nuisance claim, appellants assert that the trial court did not correctly interpret the law and based its
decision upon “misrepresentative snippets of decisions.”
Appellants contend that contrary to the trial court’s findings,
they are not limi ted to damages for “physical discomfort.”
Appellants argue that damages for nuisance also may include the
loss of use and enjoyment of their property.
{¶191} Regarding their “res ipsa loquitur” claim, appellants contend that even if it is not an independent cause of action,
they nonetheless could assert the theory in their complaint.
{¶192} As to conversion, appellants state that the trial court “ignore[d] decisions permitting mineral conversion claims
and ignore[d] the conversion of [appellants’] well
infrastructure (equipment, tools, casing, etc.) that defendants
have effectively converted into repositories for their injected
waste- fluids.” Appellants additionally argue that the trial court
abused its discretion by denying their motion to file an amended
complaint.
Redbird Redbird argues that appellants’ complaint does not *115 “meaningfully identify[] what property was damaged.” Redbird
asserts that the allegation that appellants own “approximately
1,471 acres in Washington County, Ohio and 2,317 acres in Athens
County, Ohio,” along with “equipment, business infrastructure,
and manpower to commercially develop gas and oil” is vague and
“does not specifically enumerate any mineral acreage.”
{¶195} Redbird further contends that the complaint does not “link any specific action of any of the [a]ppellees to any
particularized damage allegedly caused to the unidentified
‘mineral estate.’” Redbird stated that the complaint’s remaining
allegations likewise are “vague and general allegations that
amount to nothing more than unsupported conjecture.” Redbird
claims that appellants “seek[] to extrapolate a limited and
temporary incident involving one injection well into an ongoing,
chronic and widespread occurrence across two counties without
providing any level of detail or support.” Redbird faults
appellants for failing to specify what property the Redbird
defendants allegedly damaged or “how and when the property was
damaged.” Redbird additionally argues that (1) appellants’
complaint does not show that they have standing, (2) res ipsa
loquitur is not a separate cause of action, and (3) appellants’
cannot maintain a conversion claim for their mineral estate,
which is real property.
Deeprock Deeprock argues that appellants’ complaint contains only two specific allegations against it and that neither
sufficiently notifies Deeprock of appellants’ claims. The two
specific allegations state (1) how each entity is organized and
(2) Deeprock owned, operated and/or managed one of more
injection wells in Washington and/or Athens County. Deeprock
asserts that appellants’ claims are based solely on the
allegation that Deeprock operates injection wells. Deeprock further contends that appellants’ complaint
makes “a leap in logic” from the ODNR report to conclude that
appellees are responsible for appellants’ alleged damage.
Deeprock claims that appellants “are essentially speculating,
without any well-pled facts specific as to any Defendant in
support, that Deeprocks’ [sic] injection wells somehow caused
damage to them.” Deeprock states that appellants’ allegations
“are merely legal conclusions couched as factual statements.”
{¶200} Deeprock also complains that appellants’ complaint lacks “specific allegations,” which leaves it unable to
“properly evaluate the case” or to “possibly know what defenses
to assert without more notice of when, where, and how they
specifically purportedly h armed [appellants].” Deeprock
asserts, for example, that the complaint does not “identify the
specific property rights” that Deeprock allegedly has damaged.
Deeprock contends that it has “no idea what property they
purportedly invaded — was it property owned in fee simple by
[appellants], leased mineral rights, equipment, or all of the
above?” Deeprock also asserts that (1) res ipsa loquitur is
not a cause of action, (2) real property is not subject to
conversion, (3) appellants have not alleged that the Deeprock
appellees took physical possession of any of their “equipment,
tools, [or] casing,” and (4) business entities cannot suffer
emotional damages.
Diversified Diversified first asserts that the proper standard of review is the abuse-of-discretion standard of review applicable
to Civ.R. 15(A) motions to amend a pleading. Diversified
alleges that this standard of review governs because appellants
have limited the requested relief to a judgment that reverses
the trial court’s decision that denied their motion to amend the
complaint. Diversified further contends that appellants’
complaint fails to satisfy the notice-pleading standard. They
recognize that appellants’ complaint identifies each entity,
along with its organizational structure, and asserts that “upon
information and belief ” Diversified owns, operates “and/or”
manages one or more injection wells in Washington or Athens
County. Diversified asserts, however, that the claims for
relief contained in the complaint do not specifically identify
which entity caused appellants’ dama ges. Diversified faults
appellants for lumping all of the defendants together when
stating each claim for relief. Diversified asserts that the
complaint improperly treats appellees as “in effect identical
and indistinguishable tortfeasors” and fails to s eparate the
claims according to each appellee’s specific operations. Diversified also argues that the complaint makes “a
leap of logic” by using the ODNR report to cast all of the well -
injection operators as similar tortfeasors. Diversified
contends that the complaint indicates that appellants do not
have any “information to substantiate that any of
[Diversified’s] activities are contaminating [appellants’]
wells; if they did, presumably, [a]ppellants would have asserted
it.” Diversified fur ther asserts that the complaint does not
contain any “allegations that the specific wells operated by
[a]ppellees impacted [a]ppellants’ wells in any manner.”
Diversified faults appellants for failing o allege “the basic
‘who,’ ‘what,’ ‘when,’ and ‘where’ so [appellees] could know at
least the bare minimum about the claims against them.” Diversified also argues that the trial court did not
abuse its discretion by denying appellants’ motion to amend
their complaint. Diversified contends that the amendment does
not cure the deficiencies of the initial complaint. As an
example, Diversified states that the amended complaint does not
contain “a specific description of the manner in which the
[a]ppellees proximately caused [a]ppellants’ alleged injuries.”
Diversified asserts that “[s]imply operating an injection well,
without more, is not sufficient grounds to proceed under Ohio
law.” Diversified further alleges that the complaint fails to
set forth any facts that establish “a direct correlation between
[appellants’] asserted injuries” and Diversified’s conduct.
{¶206} Diversified additionally contends that because each appellee’s operations are different, appellants cannot “paint
all the [a]ppellees with such a broad brush by grouping them
together in effect as one amorphous tortfeasor.” Diversified
asserts that Ohio l aw requires appellants “to allege at least
some plausible facts as to how each of the defendants . . . have
proximately caused their injuries.” Diversified charges that
appellants have “failed to make a prima facie showing that their
claims against [a]ppe llees are viable.” Regarding appellants’ conversion claim, Diversified
argues that appellants’ complaint fails to allege conversion of
any personal property. Diversified further asserts that res
ipsa loquitur is not an independent cause of action.
Tallgrass Tallgrass asserts that the trial court correctly dismissed appellants’ complaint. Tallgrass contends that the
complaint does not (1) satisfy Ohio’s pleading standards, (2)
allege proximate cause, or (3) contain any “valid claims under
Ohio law.” *121 As to the first argument, Tallgrass alleges that
Ohio’s notice - pleading standard (1) “does not eliminate the need
for a properly researched and factually-supported causes of
action,” (2) requires the complaint to allege “operative facts,”
and (3) requires factual allegations to support legal claims.
Tallgrass claims that appellants’ complaint “fails to identify
any specific conduct by Tallgrass that harmed Bethel.”
Tallgrass argues that appellants’ complaint contains only two
specific allegations regardin g Tallgrass: (1) Tallgrass’s legal
structure; and (2) Tallgrass owns, operates, “and/or” manages
“one or more” injection wells located in Washington “and/or”
Athens County. Tallgrass contends that these two “nebulous
allegations do not provide Tallgrass notice of the operative
facts underlying the claims against it, and thus fail to satisfy
Ohio’s pleading standard.” Tallgrass further asserts that the
rest of appellants’ complaint simply speculates that the ODNR’s
finding that the Redbird #4 well damaged one of appellants’
wells means that all of the other injection-well operators in
the area “must be liable for harm to that well and to three
other Bethel wells in its immediate vicinity.” *122 Tallgrass states that the complaint fails to contain
any “factual allegations distinguishing between the various
injection- well operators [appellants] sued” or to place “each
[a]ppellee on notice of what, exactly, [each] did to harm”
appellants. Tallgrass contends that the complaint does not
provide any “information on how any [a]ppellee, aside from
Redbird, took any action harming Bethel.” Tallgrass asserts
that appellants’ complaint is based upon “a host of assumptions
and beliefs that are directly inconsistent with the ODNR
report.” Tallgrass argues that the ODNR Report “only addresses
a single operator, Redbird, and is at direct odds with
[appellants’] speculation that others such as Tallgrass could
have caused [appellants’] injury.” Tallgrass further alleges that appellants’ complaint
is a “shotgun pleading” and that Ohio law does not allow these
types of pleadings. Tallgrass recognizes that the Ohio Supreme
Court never has addressed shotgun pleadings but claims that in
the absence of guidance from the Ohio Supreme Court, Ohio
appellate courts “rely on the federal standard.” Tallgrass
cites several federal district court decisions denigrating
“shotgun pleadings” or pleadings that do not differentiate among
defendants. Tallgrass contends that the complaint does not
“explain[] what each operator did. Or how what that operator
did caused the injury to Bethel’s wells.” Tallgrass further argues that the complaint does not
allege how Tallgrass proximately caused appellants’ injuries.
Tallgrass asserts that the complaint fails to allege “‘some
reasonable connection between the act or omission of the
defendant and the damag e the plaintiff has suffered.’”
Tallgrass Brief at 10, quoting
Queen City
,
Tallgrass also contends that “the location of the allegedly -
damages Bethel wells directly contradicts the speculation Bethel
advanced in its Complaint.” To support this assertion,
Tallgrass refers to a map that shows the location of appellants’
wells in relation to the Redbird #4 well. Tallgrass claims that
appellants’ purportedly damaged wells are located in the same
cluster and “on the same east -northeast vector ODNR identified,
from its water samples, as the likely path for migration of
wastewater from Redbird #4.” Tallgrass contends that
appellants’ theory of liability rests upon “guilt -by-geographic-
association.”
{¶213} Regarding appellants’ nuisance claim, Tallgrass asserts that “property damage,” as appellants have alleged, does
not constitute a nuisance. Tallgrass contends that nuisance
requires a property owner to “experience some sort of physical
discomfort” and doe s not allow a property owner to recover
damages related to the loss of use and enjoyment of the
property. Tallgrass additionally alleges that appellants’
complaint fails to explain how each appellee “intentionally,
recklessly, or negligently invaded [appe llants’] interest in the
use and enjoyment of [their] property.”
{¶214} As to appellants’ res ipsa loquitur claim, Tallgrass asserts that the trial court properly dismissed this claim
because it is not a valid cause of action. Tallgrass further argues that the trial court properly
dismissed appellants’ conversion claim because the complaint
fails (1) to allege that Tallgrass converted personal property,
(2) to identify any wrongful act that Tallgrass committed, and
(3) to indicate that Tallgrass took possession of any personal
property. Tallgrass additionally contends that the trial court
correctly dismissed appellants’ claim for emotional damages
because a business entity like Bethel Oil cannot recover
emotional damages. With regard to appellants’ motion to amend the
complaint, Tallgrass asserts that the trial court did not abuse
its discretion by overruling appellants’ motion. Tallgrass
claims that the amendment does not correct the deficiencies
contained in the initial complaint.
JDDC JDDC asserts that appellants failed to “credibly allege that [JDDC’s] large -volume, high pressure waste fluid
injection operations . . . collectively caused flooding damage
to the development of [appellants’] mineral estate.” JDDC
points out that appellants allege in their appellate brief that
“it is practically undisputed that Redbird flooded a portion of
the Bethel mineral estate without permission.” JDDC states that
appellants have not, however, made a similar allegation against
JDDC. JDDC thus assert s that appellants “implicitly admit that
they have presented no evidence that any [appellee] other than
Redbird flooded [appellants’] mineral estate without
permission.” JDDC asserts that without this type of evidence,
appellants’ claims “fails as a matter of law.”
{¶219} JDDC further argues that appellants’ complaint does not establish that they have standing to sue JDDC. More
specifically, JDDC claims that appellants have not alleged that
they suffered an injury that is fairly traceable to JDDC’s
allegedly wrongful conduct. JDDC further asserts that
appellants’ complaint does not identify who owns the mineral
rights that have been damaged and does not specify what claim
Ms. Lane may have. Like some of the other appellees, JDDC contends that
the complaint “contains only 2 allegations specifically
addressing JDDC” and claims that those two allegations do not
state a cognizable claim. JDDC asserts that the complaint does
not contain operative facts and fails to provide notice of which
wells JDDC damaged, when they were damaged, or how JDDC is
connected to the damaged wells. JDDC also faults appellants for grouping all of the
appellees together without specifying what each one allegedly
did. JDDC asserts that appellants did not cite any case “in
which multiple Appellees were found jointly and severally liable
without evidence presented as to each individual Defendant.”
JDDC additionally contends that appellants’ complaint does not
contain any “evidence or reasonable explanation” how the waste
fluids JDDC injected migrated many miles in order to contaminate
appellants’ property. JDDC further claims that it does not own
any wells in Washington or Athens County. JDDC thus argues that
appellants’ complaint fails to show that JDDC’s conduct
proximately caused appellants’ injuries. JDDC contends that the trial court properly dismissed
appellants’ nuisance claim because appellants do not allege that
the alleged nuisance caused them “physical discomfort.” And
like the other appellees, JDDC asserts that (1) res ipsa
loquitur is not an independent cause of action, (2) appellants’
conversion claim fails to allege that appellees took appellants’
personal property, and (3) a business entity like Bethel Oil
cannot suffer emotional damage.
Appellants’ Replies Appellants do not agree with appellees’ characterizing their complaint as a “shotgun” complaint. Appellants assert
that they “made the same allegations against all defendants
below because they all engage in the same wrongful conduct.”
They contend that their complaint “alleges actionable damage to
their mineral estate from each defendant, and identifies a
number of factors providing a basis for bringing the identified
claims against” each defendant. Some of those factors include
the following: (1) “the documented contamination of
[a]ppellants’ wells by Redbird #4 Class II Injection Well waste
fluid”; (2) “ other oil and gas wells in the region have been
similarly contaminated”; and (3) “the nature of demonstrated
impacts to oil and gas wells from contamination, including
significantly increased pressures from the volume of waste fluid
contamination, similarities in the type and scope of operations
each defendant has conducted, the proximity of each defendant’s
injection well to [a]ppellants’ wells in comparison to
documented sources of contamination, and physical
characteristics of each [appellee]’s operation s (including depth
of wells and the geological features of the ground drilled).” Appellants argue that appellees’ briefs are replete
with “mischaracterization[s] of Ohio pleading law as requiring a
plaintiff to establish his allegations with proof.” Appellants
contend that their use of the ODNR report is to place appellees
“on notice that the waste-fluid-flooding phenomenon [a]ppellants
describe is actually happening .” (Emphasis in original).
Appellants stated that they have “not simply allege[d] that
[appellees] are responsible by virtue of them injecting waste
fluids.” Instead, their complaint “pointedly put[s] the
[a]ppellees on notice that they are being sued because they
inject waste fluids in an actionable manner that fosters and
promotes damagin g exfiltration and migration.” Regarding appellees’ argument that the complaint does
not “identify the mineral estate with any particularity,”
appellants contend that the complaint identifies (1) “the number
of [a]ppellants’ acres that have been damaged for future gas and
oil production and development,” (2) “the counties in which each
set of acreage is situated,” and (3) the name and API number of
the waste-water- flooded wells.” The complaint further alleges
“actionable injection conduct that has combined to cause harm to
the developme nt of the mineral estate.” (Emphasis omitted). Regarding appellees’ arguments that appellants’
complaint does not identify any specific wrongful conduct,
appellants retort that appellees’ arguments are “patent
misstatement[s]” when the complaint is “inundated with
references to the specific conduct at issue being the
actionable, flooding manner of each defendant’s injection
operations.” Moreover, the complaint identifies “at least 32
specific acts and/or omissions.” Regarding appellees’ proximate -cause arguments,
appellants do not disagree that they eventually must present
evidence to establish that appellees’ conduct proximately caused
appellants’ injuries. They vehemently disagree, however, that
they must present this evidence at the pleading stage.
Appellants further assert that appellees attempt to raise
factual and evidentiary issues that would be appropriate if
discovery had occurred and appellees had filed summary-judgment
motions. Appellants contend that these types of arguments are
wholly inappropriate at the motion-to-dismiss stage.
Notes
[1] This appeal involves 14 of the 16 defendants named in the complaint and those 14 defendants form five groups: (1) Redbird (Redbird Development, LLC, Dean Patrick Decker III, and Hall Drilling, LLC); (2) Tallgrass (Tallgrass Operations, LLC and K&H Partners, LLC) (3) Deeprock (Deeprock Operating Solutions, LLC, Deeprock Disposal Solutions, LLC, Brian Chavez, and Christyann Heinrich-Chavez); (4) Diversified (Diversified Production, LLC, Heckmann Water Resources (cvr), Inc., and Nuverra Environmental Solutions, Inc.); and (5) JDDC (J.D. Drilling Company and James E. Diddle). This opinion uses “appellees” collectively to mean these five groups of defendants.
[2] We observe that not all of the defendants who filed motions to dismiss are involved in this appeal. On March 1, 2023, the trial court granted Reliable Enterprises, Inc.’s (Reliable) counsel’s motion to withdraw. Reliable has not entered an appearance in this appeal.
[3] We have included additional details regarding the motion- to-dismiss proceedings in an appendix to this opinion.
[4] We observe that some of the appellees referred the trial
court to other Ohio appellate decisions that ostensibly endorse
the “plausibility” standard that the United States Supreme Court
adopted in
Bell Atlantic Corp. v. Twombly
,
[5] We have included more specifics regarding the parties’ arguments in the appendix to this opinion.
[6] Diversified asserts that the abuse-of-discretion standard of review applies because appellants have asked this court to reverse the trial court’s decision that overruled their motion to amend their complaint. Appellants also ask this court to reverse the trial court’s decision that granted appellees’ motions to dismiss, however. The proper standard of review for this issue is the de novo standard of review.
[7] Proximate cause is one element of the causes of action
contained in appellants’ complaint.
See Hester v. Dwivedi
, 89
Ohio St.3d 575, 583 (2000) (“The law of negligence does not hold
a defendant liable for damages that the defendant did not
cause.”);
Misseldine v. Corporate Investigative Serv., Inc.,
2003-Ohio- 2740, ¶ 31 (8th Dist.) (“the plaintiff must prove that
the trespass proximately caused that for which compensation is
sought and the amount of those damages”);
Gaines v. Village of
Wyoming
,
[8] One court has explained the underlying philosophy of the
discovery process as follows:
The philosophy of discovery as contained in the Ohio Civil
Rules is basically one that affords liberal rights to
discovery so that the basic facts may become known to all the
parties prior to the time when the action comes on for trial.
This includes the procuring of information which of itself
may not be admissible in Court but which in turn may lead to
admissible evidence. This philosophy is founded upon the
theory that all parties should be entitled to become aware of
all the facts pertaining to any particular occurrence, so
that a lawsuit may be determined on the presentation of all
of the facts as distinguished from being determined only on
a presentation of such facts as may be within the knowledge
of one party. This philosophy is written into the rules so
that it will be possible for all parties to become aware of
all facts and that an unjust disposition will not result
because it was impossible for one of the parties to learn the
truth. It is the function of counsel for each side of a
lawsuit to diligently attempt to ascertain all the facts in
connection with an occurrence and, of course, to have
knowledge of all the applicable law.
Jira v. Erie Lackawanna R. Co.
,
[9] The pinpoint citation for the Ohio State Reports, Third Series is not available on Westlaw.
[10] We point out that when a trial court’s denial of a motion
for leave to amend a complaint “‘“can fairly be read to have
been based on a determination that the amended complaint . . .
would not withstand a motion to dismiss, the denial is a legal
question t hat is reviewed de novo.”’”
Gilliam v. Crowe
, 2017-
Ohio-5494, ¶ 8 (2d Dist.), quoting
Marx v. Ohio State Univ.
College of Dentistry
,
[11] JDDC initially filed an answer to appellants’ complaint. After the trial court granted the other appellees’ motions to dismiss, JDDC filed a motion to dismiss, which we summarize at a later point in this appendix.