STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Johnson Family Trust, 

Plaintiff Below, Petitioner FILED 

November 10, 2016 

vs) No. 16-0070 (Harrison County 13-C-371) RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA Antero Resources Corporation, 

Defendant Below, Respondent 

MEMORANDUM DECISION 

Petitioner and plaintiff below Johnson Family Trust, by counsel Stephen A. Wickland, 

appeals the December 29, 2015, order of the Circuit Court of Harrison County that denied its 

motion to alter or amend the court’s judgment order entered on March 4, 2015. In that order, the 

circuit court granted the motion for summary judgment filed by respondent and defendant below 

Antero Resources Corporation (“Antero”), and denied petitioner’s motion to evict Antero and for 

forfeiture of bond. Antero, by counsel W. Henry Lawrence and Richard M. Yurko, Jr., filed a 

response in support of the circuit court’s order. Petitioner submitted a reply. 

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

The parties entered into a Surface Use Agreement (“SUA”) dated May 8, 2009, which 

provided that the SUA 

is for a term of two (2) years from the date hereof and as long thereafter as any of 

the facilities, as described herein are utilized for the purposes of oil and gas 

development and transmission. In the event any operations are NOT initiated 

within two (2) years from the date hereof, this agreement will become null and 

void. 

. . . . 

Grantee agrees to pay Grantors consideration in the amount of $2,500.00 at the 

time of the execution of this agreement by Grantors, an additional $14,600.00 if 

Grantee begins construction of this well-site location. This payment is an “allinclusive payment and covers payments for all production pipelines, frac-pits, 

ponds, production facilities, well-site, above or below ground water lines and 

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access roads. This payment also includes payment for damages to trees, pastures 

and other growing crops. 

. . . . 

Grantors agree and consent that this SUA will be effective for all shallow and/or 

deep wells that are drilled on Grantor’s [sic] lands from the locations described 

and shown herein. Grantors agree to approve and sign any and all documents 

required under the laws and regulations for the State of West Virginia for the 

drilling of wells from Grantor’s [sic] lands. 

Grantors agree to allow the use of water for onsite or offsite operations taken from 

any frac-pit and/or pond constructed by Grantee’s operations hereunder. Grantors 

further agree to allow Grantee to lay temporary above ground water lines over and 

across the lands to transport water to and from frac-pit(s) or pond(s) owned by 

Grantee, whether or not said ponds or frac pits are located on or off lease. 

Grantors agree to approve and sign all documents required under the rules and 

regulations of the State of West Virginia to allow the transportation of said water. 

Grantee’s operations may include but are not limited to the drilling, re-entry, 

maintenance and operation, including the laying, constructing, inspecting, 

maintaining, repairing, altering, replacing, and relocating a pipeline to transport 

production off of the lease from any wells to be located on the above described 

land. 

Additionally, under the SUA, Antero agreed to restrict traffic to and from the well-site to 

only essential personnel. 

Petitioner filed a complaint against Antero on August 29, 2013, in the Circuit Court of 

Harrison County alleging a breach of the SUA. Petitioner alleged that Antero drilled three oil and 

gas wells on the subject property and that, in or about 2011, all of the wells were completed. 

Petitioner further alleged that, upon completion of the wells, the property should have been 

abandoned by Antero and restored to its previous condition but that, instead, Antero and its 

agents, employees and contractors re-entered the property without permission or compensation to 

petitioner and began using the land for water purification pools, pipe storage for other wells, 

storage of equipment, and parking of vehicles. Petitioner alleged that such operations have 

brought dangerous and poisonous chemicals upon the property, have continued to disturb the 

surface, and have otherwise utilized the property for purposes not anticipated by the SUA. 

Antero filed an answer on October 4, 2013. 

On June 18, 2014, petitioner filed a motion to evict Antero and for forfeiture of bond in 

which it alleged that it executed the SUA “believing that [it] was for a two-year term, that their 

land would be reclaimed and restored, and that they would have full access to all their property 

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after two (2) years, except for maintenance and upkeep of the wells.”1 Petitioner argued that 

Antero disregarded its obligation under the SUA to reclaim the property after two years by using 

the property for storage of water, pipe for other wells, parking vehicles, installing lights, 

establishing an office “that worked 24 hours a day after the expiration of the two-year term,” and 

blocking the roadway that was used as a logging road for petitioner’s land. 

On June 26, 2014, Antero filed a motion for summary judgment and memorandum in 

support thereof and response to the motion to evict and forfeit bond in which it argued that it 

currently maintains three gas wells on petitioner’s land; that the three wells continue to produce 

gas; that petitioner’s belief that the SUA was for a two-year term and that petitioner would have 

full access to its property after two years is an unreasonable interpretation of the SUA; and that 

petitioner failed to show that Antero’s use of the property was for anything other than what 

Antero had a right to do under the terms of the SUA. In support of its motion and response, 

Antero included the sworn affidavit of Timothy R. Rains, Antero’s Supervisor of Surface Land 

Operations who negotiated the SUA with petitioner’s agent and, after petitioner filed a response 

to the motion, filed a reply with a supplemental affidavit from Mr. Rains. 

By order entered March 4, 2015, the circuit court granted Antero’s motion for summary 

judgment and denied petitioner’s motion to evict and forfeit bond. On March 13, 2015, petitioner 

filed a motion to alter or amend judgment, which was denied by order entered December 29, 

2015. This appeal followed. 

This Court has held that 

[t]he standard of review applicable to an appeal from a motion to alter or 

amend a judgment, made pursuant to W. Va. R. Civ. P. 59(e), is the same standard 

that would apply to the underlying judgment upon which the motion is based and 

from which the appeal to this Court is filed. 

Syl. Pt. 1, Wickland v. Am. Travellers Life Ins. Co., 204 W. Va. 430, 513 S.E.2d 657 (1998). In 

this case, the judgment underlying petitioner’s Rule 59(e) motion is summary in nature. 

Summary judgment is appropriate “only when it is clear that no genuine issue of fact to be tried 

and inquiry concerning the facts is not desirable to clarify the application of the law.” Syl. Pt. 1, 

in part, Tolliver v. Kroger Co., 201 W. Va. 509, 498 S.E.2d 702 (1997). (Internal quotations and 

citations omitted). For purposes of summary judgment, a “genuine issue” 

“is simply one half of a trialworthy issue, and a genuine issue does not arise 

unless there is sufficient evidence favoring the non-moving party for a reasonable 

jury to return a verdict for that party. The opposing half of a trialworthy issue is 

present where the non-moving party can point to one or more disputed ‘material’ 

facts. A material fact is one that has the capacity to sway the outcome of the 

1 In other words, petitioner allegedly believed that it would have full access to its 

property two years from May 8, 2009, the date the SUA was executed. 

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litigation under the applicable law.” Syllabus point 5, Jividen v. Law, 194 W.Va. 

705, 461 S.E.2d 451 (1995). 

Syl. Pt. 3, in part, Greenfield v. Schmidt Baking Co., Inc., 199 W. Va. 447, 485 S.E.2d 391 

(1997). Once a circuit court is satisfied that summary judgment is proper and has granted such 

relief, “‘[its] entry of summary judgment is reviewed de novo.’ Syl. Pt. 1, [in part,] Painter v. 

Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).” Syl. Pt. 1, in part, McGraw v. St. Joseph’s 

Hosp., 200 W. Va. 114, 488 S.E.2d 389 (1997). 

In its first assignment of error, petitioner argues that Antero breached the SUA by failing 

to reclaim the property after the two-year term had expired and that the circuit court erred in 

failing to address this breach in its March 4, 2015, order. Upon our review, we find no error. 

The SUA provides that it 

is for a term of two (2) years from the date hereof and as long thereafter as any of 

the facilities, as described herein are utilized for the purposes of oil and gas 

development and transmission. In the event any operations are NOT initiated 

within two (2) years from the date hereof, this agreement will become null and 

void. 

(Emphasis added). 

Although the contract at issue is a surface use agreement, provisions similar to the one 

quoted above are commonly found in oil and gas leases and have been addressed by this Court. 

As such, our case law is instructive. 

Known as the “habendum” or “term” clause, its purpose 

is to define and limit the duration of the lessee’s estate. The habendum clause of 

virtually all contemporary oil and gas leases provides for a relatively short 

“primary” term, consisting of a fixed period of time off from a few months to five 

or ten years, at the end of which period there must be production (or in some 

leases, the prosecution of drilling operations); the habendum clause also provides 

that the lease may be preserved for an indefinite period of time beyond the 

expiration of the primary term “as long thereafter” as oil or gas is produced in 

paying quantities (or in some leases, for as long thereafter as operations for oil or 

gas are being conducted). 

McCullough Oil, Inc. v. Rezek, 176 W. Va. 638, 642-43, 346 S.E.2d 788, 793 (1986) (citations 

omitted). 

In this case, the SUA clearly provides that the term is for two years and “as long 

thereafter as any of the facilities . . . are utilized for the purposes of oil and gas development and 

transmission.” The evidence demonstrates that Antero is still using the property for purposes of 

oil and gas development and transmission, as permitted under the SUA, and, thus, Antero has not 

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breached the contract by not reclaiming the property. According to the sworn affidavits of Mr. 

Rains of Antero, Antero currently maintains three gas wells on petitioner’s property under the 

SUA. These wells, which were constructed within two years of the execution of the SUA2 and 

are currently producing gas. The evidence further demonstrated that petitioner’s property is 

being used for oil and gas development and transmission. Petitioner has failed to submit any 

evidence or legal authority in support of its position that the SUA has expired such that 

reclamation should have taken place, nor has it cited to any evidence within the appendix record 

in support of such claim. Indeed, petitioner’s argument fails to comport with Rule 10(c)(7) of the 

West Virginia Rules of Appellate Procedure (requiring that appellate briefs “must contain 

appropriate and specific citations to the record on appeal”). Furthermore, it is beyond cavil that 

“‘[s]elf-serving assertions without factual support in the record will not defeat a motion for 

summary judgment.’ Williams v. Precision Coil, Inc., 194 W.Va. 52, 61 n. 14, 459 S.E.2d 329, 

338 n. 14 (1995).” Barbina v. Curry, 221 W. Va. 41, 48, 650 S.E.2d 140, 147 (2007). See West 

Virginia Fire & Cas. Co. v. Mathews, 209 W. Va. 107, 112 n. 5, 543 S.E.2d 664, 669 n. 5 (2000) 

(stating that “[s]tatements made by lawyers do not constitute evidence in a case.”). As we held in 

syllabus point three of Williams, 

[i]f the moving party makes a properly supported motion for summary 

judgment and can show by affirmative evidence that there is no genuine issue of 

material fact, the burden of production shifts to the nonmoving party who must 

either (1) rehabilitate the evidence attacked by the moving party, (2) produce 

additional evidence showing the existence of a genuine issue for trial, or (3) 

submit an affidavit explaining why further discovery is necessary as provided in 

Rule 56(f) of the West Virginia Rules of Civil Procedure. 

194 W. Va. at 56, 459 S.E.2d at 333. To carry its burden, the nonmoving party must offer “more 

than a mere ‘scintilla of evidence’ and must produce evidence sufficient for a reasonable jury to 

find in a nonmoving party’s favor. Anderson [v. Liberty Lobby, Inc.], 477 U.S. [242,] at 252, 106 

S.Ct. [2505,] at 2512, 91 L.Ed.2d [202,] at 214 [(1986)].” Williams, 194 W. Va. at 60, 459 

S.E.2d at 337. Petitioner has failed to create a genuine issue of material fact with regard to its 

allegation that Antero breached the SUA by failing to reclaim the property after two years. 

Therefore, we conclude that the circuit court did not err in granting summary judgment in favor 

of Antero on this issue.3 

2 In his complaint, petitioner avers that Antero began work on the wells on October 13, 

2009, August 17, 2010, and May 10, 2011, respectively, the third well having been commenced 

more than two years after the execution of the SUA. However, petitioner failed to submit any 

evidence in support of this allegation. In contrast, Mr. Rains’s sworn supplemental affidavit 

submitted during the summary judgment proceedings clearly states that the third well was 

commenced “on June 30, 2010[,] which is before May 8, 2011.” 

3 In a related assignment of error, petitioner argues that the circuit court erred in denying 

petitioner relief for Antero’s purported violations of reclamation requirements set forth in the 

SUA and the permit issued to Antero by the State of West Virginia. Petitioner contends that, 

under the SUA, Antero agreed to “[f]ertilize, lime and re-seed disturbed areas with Meadow Mix 

and mulch if necessary.” As support for its claim that the well permit also requires that certain 

(continued . . .) 

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Next, petitioner argues that the circuit court erred in failing to find that Antero breached 

the SUA by using the property for “unauthorized purposes.” Petitioner argues that Antero parked 

“multiple vehicles” on the property after the wells were completed; chemicals were stored on the 

land; water was stored and removed from the frac-pit pond for wells located off-site; and that 

lights were installed and an office established. Petitioner argues that these activities were neither 

authorized nor contemplated under the SUA and that petitioner should be compensated for this 

unauthorized use of its property. 

We find no error. As previously established, petitioner failed to submit any evidence in 

support of his motion to evict or in response to Antero’s motion for summary judgment, 

including with regard to its claim that Antero has used the property for unauthorized purposes. 

In fact, a plain reading of the SUA shows that petitioner 

agree[d] to allow the use of water for onsite or offsite operations taken from any 

frac-pit and/or pond constructed by Grantee’s operations hereunder. Grantors 

further agree to allow Grantee to lay temporary above ground water lines over and 

across the lands to transport water to and from frac-pit(s) or pond(s) owned by 

Grantee, whether or not said ponds or frac pits are located on or off lease. 

Furthermore, as set forth in the SUA, Antero’s “operations may include but are not 

limited to the drilling, re-entry, maintenance and operation, including the laying constructing, 

inspecting, maintaining, repairing, altering, replacing, and relocating a pipeline to transport 

production off of the lease from any wells to be located on the above described land.” 

steps be taken to reclaim the property, petitioner points to an exhibit that was purportedly 

attached to and referenced in the SUA which, according to the SUA, shows the access roads, 

layout, and location of the proposed drilling sites and states that “[a]ll cut and fill slopes will be 

seeded and mulched immediately after construction.” However, petitioner fails to present any 

further explanation or evidence that any of these steps have not been taken or should have been 

taken at this point, fails to include a copy of the well permit in the appendix record for our 

review, and fails to dispute Antero’s representation that, in fact, it has completed partial 

reclamation of petitioner’s property and is awaiting final federal approval of its plans to conclude 

reclamation. As we stated in State, Dept. of Health v. Robert Morris N., 195 W. Va. 759, 765, 

466 S.E.2d 827, 833 (1995), “‘[a] skeletal “argument,” really nothing more than an assertion, 

does not preserve a claim. . . . Judges are not like pigs, hunting for truffles buried in briefs.’” 

(quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991)). See State v. Lilly, 194 

W.Va. 595, 605 n. 16, 461 S.E.2d 101, 111 n. 16 (1995) (noting that “appellate courts frequently 

refuse to address issues that appellants . . . fail to develop in their brief.”). See also Ohio Cellular 

RSA Ltd. P’ship v. Bd. of Pub. Works of West Virginia, 198 W. Va. 416, 424 n. 11, 481 S.E.2d 

722, 730 n. 11 (1996) (refusing to address issue on appeal that had not been adequately briefed). 

Therefore, we decline to address this assignment of error. 

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This Court has held that “[w]here there has been a severance of the mineral estate and the 

deed gives the grantee the right to utilize the surface, such surface use must be for purposes 

reasonably necessary to the extraction of the minerals.” Syl. Pt. 2, Buffalo Mining Co. v. Martin, 

165 W. Va. 10, 267 S.E.2d 721 (1980). By the same token, “[t]he owner of the mineral 

underlying land possesses, as incident to this ownership, the right to use the surface in such 

manner and with such means as would be fairly necessary for the enjoyment of the mineral 

estate.” Syl. Pt. 1, Squires v. Lafferty, 95 W. Va. 307, 121 S.E. 90 (1924). The SUA shows that 

it clearly permits Antero’s use of water from the frac-pit for onsite or offsite operations. With 

regard to petitioner’s claims that Antero breached the SUA by parking vehicles on the property, 

storing chemicals, and constructing temporary lighting and a temporary building (that have since 

been removed), we find that petitioner failed to show that these uses of the surface are not “for 

purposes reasonably necessary to extraction of the” oil and gas. Buffalo Mining Co., 165 W. Va. 

at 10, 267 S.E.2d at 722, syl. pt. 2, in part. Thus, we conclude that the circuit court did not err in 

granting summary judgment in favor of Antero on this issue. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: November 10, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

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