Donald E. Wood, Appellant-Appellant, v. Richard J. Simmers, Chief, Division of Oil and Gas Resources Management, Appellee-Appellee.
No. 17AP-269
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
November 28, 2017
[Cite as Wood v. Simmers, 2017-Ohio-8718.]
SADLER, J.
(C.P.C. No. 16CV-11455) (ACCELERATED CALENDAR)
Rendered on November 28, 2017
On brief: Donald E. Wood, for appellant. Argued: Donald E. Wood.
On brief: Michael DeWine, Attorney General, and Gene D. Park, for appellee. Argued: Gene D. Park.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Appellant-appellant, Donald E. Wood, appeals from a judgment of the Franklin County Court of Common Pleas affirming an order of the Oil and Gas Commission (“commission“) in favor of appellee-appellee, Richard J. Simmers, Chief, Division of Oil and Gas Resources Management. For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellant is the owner of 16 oil and gas wells in Ohio. Appellant is also an attorney licensed to practice law in Ohio. On July 6, 2015, appellee issued Chief‘s Order 2015-345, finding that appellant “failed to maintain and/or file financial assurance with the Division” as required by
{¶ 3} On August 3, 2015, appellant filed a notice of appeal to the commission, pursuant to
{¶ 4} On January 11, 2016, appellant filed a motion with the commission, pursuant to
{¶ 5} On November 18, 2016, the commission issued an order denying appellant‘s motion to certify a class. The stated reasons for the denial of the motion are that “[t]he statutes and rules applicable to the Commission do not specifically empower this Commission to certify a class action” and “[w]hile the Commission may look to the civil rules for guidance, strict compliance with the civil rules is not required unless specifically referenced.” (Order at 3, 4.) The commission did not reach the merits of appellant‘s arguments regarding the lawfulness of Chief‘s Order 2015-345.
II. ASSIGNMENT OF ERROR
{¶ 7} Pursuant to
{¶ 8} This court has recently noted that “[a]ppellate courts have discretion to dismiss appeals that fail to set forth assignments of error.” Angus v. Angus, 10th Dist. No. 14AP-742, 2015-Ohio-2538, ¶ 10, citing CitiMortgage, Inc. v. Asamoah, 10th Dist. No. 12AP-212, 2012-Ohio-4422, ¶ 5; Tonti v. Tonti, 10th Dist. No. 06AP-732, 2007-Ohio-2658, ¶ 2. “Many times, however, appellate courts instead review the appealed judgment using the appellants’ arguments in the interest of serving justice.” Angus at ¶ 10, citing Asamoah at ¶ 6; Tonti at ¶ 2. Thus, this court has the discretion to consider and rule on arguments made in an appellate brief in the absence of an assignment of error. Angus at ¶ 10. See also Pankey v. Ohio Adult Parole Auth., 10th Dist. No. 11AP-36, 2011-Ohio-4209, ¶ 4 (appellate court, in the interest of justice, construed appellant‘s “Issue Presented for Review” as an assignment of error and addressed the merits of the appeal).
{¶ 9} Appellee has not moved this court to dismiss the appeal due to appellant‘s failure to assert an assignment of error in its merit brief. Additionally, we note that appellant‘s brief contains the following question under the heading “statement of the case“:
When the Chief of the Division of Oil and Gas Resources Management, State of Ohio, engages in the practice of administrative rulemaking through the issuance of unlawful chief‘s orders, may the recipients of those orders form a class to appeal the orders, or must each recipient individually appeal the order pursuant to Ohio Revised Code Section
1509.36 ?
{¶ 10} Because the alleged trial court error is clear from appellant‘s “statement of the case” and the arguments contained in appellant‘s brief, and because appellee has responded to those arguments, we will construe appellant‘s statement of the case as an assignment of error and rule on the merits of the appeal. Angus; Pankey.
III. STANDARD OF REVIEW
{¶ 11} Pursuant to
Any party adversely affected by an order of the oil and gas commission may appeal to the court of common pleas of Franklin county.
* * *
If the court finds that the order of the commission appealed from was lawful and reasonable, it shall affirm the order. If the court finds that the order was unreasonable or unlawful, it shall vacate the order and make the order that it finds the commission should have made. The judgment of the court is final unless reversed, vacated, or modified on appeal.
{¶ 12} Thus, “[t]he standard of review on an appeal for the common pleas court from the commission is whether the commission‘s order was reasonable and lawful.” Simmers v. N. Royalton, 10th Dist. No. 15AP-900, 2016-Ohio-3036, ¶ 21, citing Martz v. Div. of Mineral Resources Mgt., 10th Dist. No. 08AP-12, 2008-Ohio-4003, ¶ 13; Johnson v. Kell, 89 Ohio App.3d 623, 625 (10th Dist.1993). “’ “Unlawful” means that which is not in accordance with law.’ ” “‘“Unreasonable” means that which is not in accordance with reason, or that which has no factual foundation.’ ” Id. at 626, quoting Citizens Commt. to Reserve Lake Logan v. Williams, 56 Ohio App.2d 61, 70 (10th Dist.1977).
“* * *
In reviewing an order of an administrative agency, an appellate court‘s role is more limited than that of a trial court reviewing the same order. It is incumbent on the trial court to examine the evidence. Such is not the charge of the appellate court. The appellate court is to determine only if the trial court has abused its discretion. An abuse of discretion implies not merely error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency.‘” State, ex rel. Commercial Lovelace Motor Freight, Inc., v. Lancaster (1986), 22 Ohio St. 3d 191, 193, 22 OBR 275, 277, 489 N.E. 2d 288, 290. Absent an abuse of discretion on the part of the trial court, a court of appeals must affirm the trial court‘s judgment. See Rohde v. Farmer (1970), 23 Ohio St. 2d 82, 52 O.O. 2d 376, 262 N.E. 2d 685.
The fact that the court of appeals, or this court, might have arrived at a different conclusion that did the administrative agency is immaterial. Appellate courts must not substitute their judgment for those of an administrative agency or a trial court absent the approved criteria for doing so.
{¶ 14} “On questions of law, however, the court of appeals’ review is plenary.” Gemini Energy, Inc. v. Div. of Mineral Resources Mgt., 10th Dist. No. 06AP-633, 2007-Ohio-5091, ¶ 9, citing Univ. Hosp., Univ. of Cincinnati College of Medicine v. State Emp. Relations Bd., 63 Ohio St.3d 339 (1992), paragraph one of the syllabus.
IV. LEGAL ANALYSIS
{¶ 15} The commission denied appellant‘s motion for class certification stating that “[t]he statutes and rules applicable to the Commission do not specifically empower this Commission to certify a class action” and “[w]hile the Commission may look to the civil rules for guidance, strict compliance with the civil rules is not required unless specifically referenced.” (Nov. 18, 2016 Order at 3, 4.) Appellant argues that the commission order denying class certification is unlawful and unreasonable because there is nothing in
{¶ 16} “The General Assembly created the Oil and Gas Commission.” Chesapeake Exploration, L.L.C. v. Oil & Gas Comm., 135 Ohio St.3d 204, 2013-Ohio-224, ¶ 13, quoting
{¶ 17}
Any person adversely affected by an order by the chief of the division of oil and gas resources management may appeal to the oil and gas commission for an order vacating or modifying the order.
* * *
The appeal shall be in writing and shall set forth the order complained of and the grounds upon which the appeal is
based. The appeal shall be filed with the commission within thirty days after the date upon which the appellant received notice by certified mail and, for all other persons adversely affected by the order, within thirty days after the date of the order complained of. Notice of the filing of the appeal shall be filed with the chief within three days after the appeal is filed with the commission.
{¶ 18} There is no provision in
{¶ 19} Moreover, as the commission noted, when the General Assembly created the commission, it did not specify the procedural rules that apply in commission proceedings. Rather,
{¶ 21} Accordingly, we hold that the certification of a class action, pursuant to
{¶ 22} Appellant claims, however, that absent class certification,
Sections
1509.01 to1509.37 of the Revised Code , providing for appeals relating to orders by the chief or by the commission, or relating to rules adopted by the chief, do not constitute the exclusive procedure that any person who believes the person‘s rights to be unlawfully affected by those sections or any official action taken thereunder must pursue in order to protect and preserve those rights, nor do those sections constitute a procedure that that person must pursue before that person may lawfully appeal to the courts to protect and preserve those rights.
{¶ 24} In State ex rel. Fisher v. Nacelle Land & Mgt. Corp., 90 Ohio App.3d 93 (11th Dist.1993), the state filed an action seeking injunctive relief and the imposition of civil fines, alleging the corporate well owner failed to abide by the conditions attached to a permit. The trial court granted summary judgment in favor of the state, and the corporation appealed to this court. In rejecting the state‘s contention that the corporation had no right of appeal because it had failed to appeal the chief‘s order to the commission, pursuant to
The plain meaning of the language in this statute does not require the procedure set forth to be pursued before appealing to the courts. Thus, the trial court correctly determined that the
R.C. 1509.36 appeal is neither mandatory nor exclusive and appellants’ collateral attack on the order of the ODNR is not barred by failure to pursue anR.C. 1509.36 appeal.
{¶ 25} Similarly, in Nacelle Land & Mgt. Corp. v. Ohio Dept. of Natural Resources, 65 Ohio App.3d 481 (10th Dist.1989), a corporation engaged in the business of pumping brine, waste generated from drilling oil, into underground wells applied for and received a permit from the department. The permit set forth the pumping pressure at which the corporation could operate. The corporation initially appealed to the commission, pursuant to
{¶ 26} On appeal, this court held that the state‘s prior consent to be sued by way of an administrative action did not bar an action by the permit holder in the Court of Claims for money damages where such an action would provide the only effective remedy. This
{¶ 27} The foregoing case law and the plain language of
{¶ 28} We also disagree with appellant‘s argument that the trial court, in ruling on appellant‘s
If the court finds that the order of the commission appealed from was lawful and reasonable, it shall affirm the order. If the court finds that the order was unreasonable or unlawful, it shall vacate the order and make the order that it finds the commission should have made.
{¶ 29} Here, the common pleas court found that the commission‘s decision to deny class certification was lawful and reasonable. Under such circumstances,
{¶ 30} For the foregoing reasons, we hold that the common pleas court did not err when it affirmed the order of the commission and denied appellant‘s motion for class certification. Accordingly, to the extent appellant‘s merit brief sets forth a reviewable assignment of error, we overrule it.
V. CONCLUSION
{¶ 31} Having overruled appellant‘s sole assignment of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN and KLATT, JJ., concur.