[Cite as Oxford Oil Co. v. West, 2016-Ohio-5684.]

STATE OF OHIO, BELMONT COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

THE OXFORD OIL COMPANY, 

N.K.A. ECLIPSE RESOURCES-OHIO, 

LLC 

 PLAINTIFFS-APPELLANTS 

VS. 

BARRY M. WEST, et al. 

 DEFENDANT-APPELLEE 

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CASE NO. 13 BE 0031 

OPINION 

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common 

Pleas of Belmont County, Ohio 

Case No. 11 CV 435 

JUDGMENT: Reversed and Remanded. 

APPEARANCES: 

For Plaintiffs-Appellants: 

Attorney David E. Northrop 

Attorney Clay K. Keller 

Babst Calland Clements and Zomnir, PC 

One Cascade Plaza, Suite 1010 

Akron, Ohio 44308 

Attorney John K. Keller 

Attorney John J. Kulewicz 

Attorney Timothy B. McGranor 

Vorys, Sater, Seymour & Pease LLP 

52 East Gay Street 

P.O. Box 1008 

Columbus, Ohio 43216-1008 

Attorney William J. Taylor 

Attorney Scott D. Eickelberger 

Kincaid, Taylor & Geyer 

50 North Fourth Street 

P.O. Box 1030 

Zanesville, Ohio 43701-1030 

For Defendant-Appellee: 

Attorney John A. Vavra 

Attorney Joseph A. Vavra 

Vavra Law Office 

132 West Main Street 

St. Clairsville, Ohio 43950

JUDGES: 

Hon. Mary DeGenaro 

Hon. Gene Donofrio 

Hon. Carol Ann Robb 

 

 

 Dated: September 6, 2016 
[Cite as Oxford Oil Co. v. West, 2016-Ohio-5684.]

DeGENARO, J. 

{¶1} Plaintiff-Appellant, The Oxford Oil Company, now known as Eclipse 

Resources-Ohio, LLC (Oxford Oil), appeals the trial court judgment invalidating an oil 

and gas lease with Defendants-Appellees Barry M. West, Stacey L. West, Brian K. 

West, and Shelly West, asserting the trial court erred by concluding the Lease was a 

no-term, perpetual lease that is void ab initio as against public policy. 

{¶2} Pursuant to the Ohio Supreme Court's recent decision in State ex rel. 

Claugus Family Farm, L.P. v. Seventh Dist. Court of Appeals, 145 Ohio St.3d 180, 

2016-Ohio-178, 47 N.E.3d 836, the Lease is not perpetual; rather, it has a primary 

term of a definite duration of five years—which allows for the payment of delay rental 

payments only during the primary term—followed by a secondary term that extends 

the Lease if certain conditions are met. Accordingly the judgment of the trial court is 

reversed, and the matter remanded for further proceedings consistent with this 

opinion. 

Facts and Procedural History 

{¶3} The Wests own a 97-acre parcel and entered into an oil and gas lease 

with Oxford Oil in October 2006. The Lease has a habendum clause that provides a 

primary term of five years, and a secondary term of indefinite duration that follows the 

expiration of the primary term, to continue under terms defined in that clause. The 

Lease also contains a delay rental provision, which gives Oxford Oil the option to 

defer commencement for successive twelve-month periods by paying annual delay 

rentals. The Lease goes on to expressly disclaim implied covenants. 

{¶4} The Wests accepted all delay rental payments from Oxford Oil. While 

the Lease still had approximately four months remaining in its primary term, Oxford 

Oil attempted to enter the premises to commence operations for a well. However, the 

Wests notified Oxford Oil that they would not allow access. 

{¶5} Just before the primary term was set to expire, Oxford Oil filed a 

complaint seeking the following relief: 1) an order requiring the Wests to comply with 

the Lease by allowing Oxford Oil to enter the property to extract oil and gas; 2) a 

declaration that the Lease is enforceable, valid and binding; and 3) an extension of 
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the Lease term due to the Wests' refusal to allow access. The Wests filed an answer 

and counterclaims asserting: 1) defective execution; 2) abandonment; 3) fraud; 4) 

bad faith; 5) breach of implied duty to develop mineral rights; 6) prohibition of 

assignment; 7) the Lease was void ab initio as a lease in perpetuity and contrary to 

public policy; and 8) quiet title. Discovery commenced, depositions WERE taken and 

filed. 

{¶6} The parties filed and opposed reciprocal summary judgment motions on 

a variety of their respective claims. The trial court disposed of both motions on a 

limited basis, granting the Wests partial summary judgment, reasoning that the Lease 

was perpetual and thus void ab initio. The trial court entered judgment, finding no 

just reason for delay pursuant to Civ.R. 54(B), Oxford Oil appealed and the trial court 

stayed its judgment pending appeal. 

{¶7} While this appeal was pending, this court held that another lease with 

substantially similar language was not a perpetual lease and thus valid in Hupp v. 

Beck Energy Corp., 2014-Ohio-4255, 20 N.E.3d 732 (7th Dist.) That case was 

accepted for review by the Ohio Supreme Court; thus we stayed resolution of this 

case. Hupp was consolidated with another related case and on January 26, 2016, the 

Ohio Supreme Court, inter alia, affirmed this court's decision in Hupp, concluding the 

subject leases were valid—not void as against public policy. State ex rel. Claugus 

Family Farm, L.P. v. Seventh Dist. Court of Appeals, 145 Ohio St.3d 180, 2016-Ohio178, 47 N.E.3d 836. The parties thereafter filed supplemental briefs addressing the 

impact of Claugus upon this appeal. 

Perpetual versus Term Lease 

{¶8} Oxford Oil's first, second, fourth, fifth, and seventh assignments of error 

raise interrelated issues and will be discussed together for clarity of analysis: 

The Common Pleas Court erred by ruling that the oil and gas 

lease between the parties is a "no term" lease. 

The Common Pleas Court erred by declaring that an oil and gas 

lease with a secondary term of indefinite duration is a "no term" lease in 
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perpetuity. 

The Common Pleas Court erred by declaring that an oil and gas 

lease with a secondary term of indefinite duration is void ab initio as 

contrary to public policy. 

The Common Pleas Court erred by declaring all oil and gas 

leases with similar clauses void ab initio. 

The Common Pleas Court erred by granting summary judgment 

for the defendants. 

{¶9} In its related third assignment of error, Oxford Oil asserts: 

The Common Pleas Court erred by holding that an oil and gas 

lease in perpetuity is void ab initio as a matter of law. 

{¶10} A trial court's summary judgment is subject to de novo review. Parenti 

v. Goodyear Tire & Rubber Co., 66 Ohio App.3d 826, 829, 586 N.E.2d 1121 (9th 

Dist.1990). Summary judgment is only proper when the movant demonstrates that, 

viewing the evidence most strongly in favor of the nonmovant, reasonable minds 

must conclude no genuine issue as to any material fact remains to be litigated and 

the moving party is entitled to judgment as a matter of law. Civ.R. 56. Further, "[t]he 

construction of written contracts and instruments of conveyance is a matter of law." 

Graham v. Drydock Coal Co., 76 Ohio St.3d 311, 313, 667 N.E.2d 949 (1996), 

quoting Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 374 N.E.2d 146 

(1978), paragraph one of the syllabus 

{¶11} Oxford Oil contends partial summary judgment in favor of the Wests on 

their counterclaim must be reversed as the Lease had a defined primary term that 

had not yet expired, as well as a secondary term. The trial court based its decision 

that the Lease here was perpetual in duration, and thus void ab initio as against 

public policy, upon the Monroe County Common Pleas Court decision in Hupp v. 

Beck Energy that invalidated a similar oil and gas lease, termed the Form G & T 83 
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lease, for the same reasons. However, we reversed the trial court in Hupp and that 

decision was affirmed by the Ohio Supreme Court in Claugus, supra. 

{¶12} In Claugus, the landowners argued that the inclusion of the delay-rental 

provision and the phrases "in the judgment of the Lessee" and "capable of being 

produced" rendered the lease perpetual and void ab initio as against Ohio's public 

policy. Id. at ¶ 19. 

{¶13} The Ohio Supreme Court rejected these arguments, holding that the 

delay-rental provisions only applied during the primary term of the lease and could 

not be used by the lessee beyond that fixed primary term. Id. at ¶ 20-21, 24-25. The 

Court further held that the phrases "capable of being produced" and "in the judgment 

of the Lessee" in the habendum clause of the lease did not render the lease 

perpetual, because these phrases only applied to an existing well drilled on the lease 

and could not be used by the lessee to unilaterally extend the lease without actual 

development. Id. at ¶ 24, 27-28. Accordingly, the Court held that the G & T 83 lease 

was valid and enforceable. Id. at ¶ 30. 

{¶14} Thus, we must determine whether the language in this Lease is similar 

enough to the lease in Claugus such that the holding controls the resolution of this 

case. 

{¶15} The habendum and delay rental clauses in Claugus stated respectively: 

2. This lease shall continue in force and the rights granted 

hereunder be quietly enjoyed by the Lessee for a term of ten years and 

so much longer thereafter as oil and gas or their constituents are 

produced or are capable of being produced on the premises in paying 

quantities, in the judgment of the Lessee, or as the premises shall be 

operated by the Lessee in the search for oil or gas and as provided in 

paragraph 7 following. 

3. This lease, however, shall become null and void and all rights 

of either party hereunder shall cease and terminate unless, within ____ 

months from the date hereof, a well shall be commenced on the 

premises, or unless the Lessee shall thereafter pay a delay rental of 
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____ Dollars each year, payments to be made quarterly until the 

commencement of a well. A well shall be deemed commenced when 

preparations for drilling have been commenced. 

Claugus at ¶ 23. 

{¶16} Here, the habendum and delay rental clauses provide respectively: 

All of the above described [oil and gas] rights shall extend for a 

term of FIVE (5) years and so much longer as oil, gas or their 

constituents are produced or are capable of being produced in paying 

quantities (in the sole opinion of Lessee) or as long as gas is stored or 

gas, air, brine or any other substance is injected as provided herein or 

operations and/or transportation is maintained on all or any part of the 

[Leased premises]. 

Lessee shall commence operations for a well on the premises by 

December 25, 2006, or pay Lessor delay rental of FOUR HUNDRED 

EIGHTY FIVE dollars ($485.00) each year, payable annually in 

advance. The first annual payment shall be due on December 25, 2006 

and shall give the Lessee the privilege of deferring the commencement 

of a well for TWELVE (12) months following the due date. * * * [T]he 

commencement of a well may be further deferred for periods of the 

same number of months successively during the term of the lease. * * * 

{¶17} The Lease herein is substantially similar to the Claugus lease validated 

by the Ohio Supreme Court. In fact, the delay rental provision language in the Lease 

more clearly contradicts a perpetual interpretation insofar as it explicitly states that 

the delay-rental clause only applies "during the term of the lease." (Emphasis added.) 

In Claugus, the delay rental provision was not as clear, thus the Court relied on case 

law interpreting delay-rental provisions to apply only during the primary term of a 

lease. Claugus at ¶ 25, citing Brown v. Fowler, 65 Ohio St. 507, 63 N.E. 76 (1902); 

and Jacobs v. CNG Transm. Corp., 332 F.Supp.2d 759, 786 (W.D.Pa.2004). 
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{¶18} Accordingly, the Lease is not a perpetual lease that is void as against 

public policy pursuant to Claugus. Rather, the Lease has a primary term of a definite 

duration of five years—which allows for the payment of delay rental payments only 

during the primary term—followed by a secondary term that extends the lease if 

certain conditions are met. Thus, Oxford Oil's first, second, fourth, fifth, and seventh 

assignments of error are meritorious. 

{¶19} Finally, Oxford Oil attacks the trial court's conclusion that, as a general 

matter, perpetual oil and gas leases are void ab initio. The Ohio Supreme Court 

clarified that "long-term leases of mineral rights under which there is no development 

of the land are void as against public policy." Claugus at ¶ 21, citing Ionno v. Glen–

Gery Corp., 2 Ohio St.3d 131, 134, 443 N.E.2d 504 (1983). Ultimately, the Court in 

Claugus concluded the lease was not perpetual. Id. at ¶ 24-30. Similarly, the Lease in 

this case is not perpetual. Accordingly, Oxford Oil's third assignment of error is moot. 

Return of Rentals and Release of Lease 

{¶20} In its sixth assignment of error, Appellant asserts: 

The Common Pleas Court erred in ordering the lessors to return 

delay rental payments and ordering the County Recorder to place on 

the record an entry that the lease between the parties has been 

released. 

{¶21} As the trial court erred by invalidating the Lease, it follows that it was 

error to order the Wests to return delay rental payments and to order the County 

Recorder to place on the record an entry releasing the Lease. Accordingly, Oxford 

Oil's sixth assignment of error is meritorious. 

Denial of Summary Judgment 

{¶22} Finally, it its eighth assignment of error, Oxford Oil asserts: 

The Common Pleas Court erred by denying the motion of plaintiff 

for summary judgment. 

{¶23} The trial court's decision granting the Wests' partial summary judgment 
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motion and denying Oxford Oil's hinged solely on the determination that the Lease 

was invalid; i.e., that it was perpetual and void ab initio as against public policy. The 

trial court did not address the merits of the remainder of either the Wests' 

counterclaims or Oxford Oil's declaratory judgment claim. 

{¶24} "[I]t is well-established that issues raised in summary judgment 

motions but not considered by the trial court will not be ruled upon by the appellate 

court." Conny Farms, Ltd. v. Ball Resources, Inc., 7th Dist. No. 09 CO 36, 2011-Ohio5472, ¶ 15, citing Mills–Jennings, Inc. v. Dept. of Liquor Control, 70 Ohio St.2d 95, 

99, 435 N.E.2d 407 (1982); Ochsmann v. Great American Ins. Co., 10th Dist. No. 

02AP–1265, 2003-Ohio-4679, ¶ 21. 

{¶25} In Conny Farms, the trial court's ruling was based upon a legal issue: 

that a judicial ascertainment clause in the lease precluded the plaintiffs from bringing 

suit. Id. at ¶ 27–28. The trial court did not review the merits of the plaintiff's 

underlying claims that the leases had been breached or had expired, despite the fact 

that the merits were raised in summary judgment proceedings. Id. On appeal, we 

held the judicial ascertainment clause was unenforceable and declined to review the 

substantive arguments raised by the plaintiff because the trial court had not resolved 

those issues. Id. See also Fullum v. Columbiana Cty. Coroner, 7th Dist. No. 12 CO 

51, 2014-Ohio-5512, 25 N.E.3d 463, ¶ 44-46; and Tree of Life Church v. Agnew, 7th 

Dist. No. 12 BE 42, 2014-Ohio-878, ¶ 27-28. 

{¶26} Similarly, the merits of the remainder of the Wests' counterclaims were 

raised via summary judgment but not addressed by the trial court; its ruling was 

based solely upon the counterclaim that a perpetual lease is void. 

{¶27} Thus, Oxford Oil's eighth assignment of error is meritorious in part. The 

trial court should have granted summary judgment in favor of Oxford Oil on the 

Wests' counterclaim attacking the Lease as perpetual and void. The matter is 

remanded for the trial court to consider the remainder of Oxford Oil's claims and the 

Wests' counterclaims, in a manner consistent with this court's opinion and with 

Claugus. 

Equitable Tolling 
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{¶28} While this case was stayed pending the Supreme Court's decision in 

Claugus, Oxford Oil filed a motion to toll the terms of the Lease during the pendency 

of the appeal process. Oxford Oil requested we toll the primary term of the Lease 

from the time the Wests refused to allow Oxford Oil access to the subject property 

through the pendency of these proceedings and all other appellate proceedings. 

{¶29} The Wests failed to oppose this motion. Moreover, the trial court stayed 

its judgment pending this appeal. 

{¶30} Following the Claugus decision, Oxford Oil supplemented its request for 

equitable tolling in reliance on the Ohio Supreme Court validating the remedy in that 

case, reasoning that because the Wests have blocked Oxford Oil from developing its 

bargained-for development rights, in order to preserve these rights, it is necessary to 

toll the primary term of the Lease. 

{¶31} Civ.R. 62(D) provides: 

The provisions in this rule do not limit any power of an appellate court 

or of a judge or justice thereof to stay proceedings during the pendency 

of an appeal or to suspend, modify, restore, or grant an injunction 

during the pendency of an appeal or to make any order appropriate to 

preserve the status quo or the effectiveness of the judgment 

subsequently to be entered. 

{¶32} App.R. 7(A) further provides for application of "an order suspending, 

modifying, restoring or granting an injunction during the pendency of an appeal * * * 

made to the court of appeals or to a judge thereof * * *." While a stay must ordinarily 

be sought in the first instance in the trial court, App.R. 7(A) imposes no such 

obligation for requesting injunctive relief. Rather the rule expressly notes that a stay 

must ordinarily be sought in the first instance in the trial court "except in cases of 

injunction pending appeal * * *[,]" which is the situation presented herein. 

{¶33} Courts have concluded that "where plaintiff has placed a cloud on the 

title of a leasehold by seeking judicial cancellation of the lease, a court may, in 

fairness to the lessee, toll the running of the lease terms." Jicarilla Apache Tribe v. 
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Andrus, 687 F.2d 1324, 1341 (10th Cir.1982). See also H & G Fossil Fuels Co., v. 

Roach, 103 N.M. 793, 795–797, 715 P.2d 66 (1986) (reversing lower court's refusal 

to toll lease). 

{¶34} In Claugus, the Ohio Supreme Court also considered the propriety of an 

equitable tolling order entered to maintain the status quo during the pendency of an 

appeal. In Claugus, the landowners prevailed in the trial court challenging the validity 

of the lease, and on appeal this court, pursuant to a motion filed under Civ.R. 62(D) 

and App.R. 7(A), equitably tolled the lease terms during the pendency of the appeal 

process. The Supreme Court denied writs of mandamus and prohibition challenging 

the validity of our equitable tolling order; thus concluding this court had jurisdiction to 

enter the tolling order. Claugus at ¶ 34–40. 

{¶35} Pursuant to Claugus, we grant Oxford Oil's motion for equitable tolling. 

It is reasonable and equitable to toll the primary term of the Lease beginning at the 

point the Wests refused to permit access to the property, August 8, 2011. See 

Feisley Farms Family, L.P. v. Hess Ohio Resources, No. 2:14-cv-146, 2015 WL 

5793936 at *7 (S.D.Ohio Sept. 30, 2015) (tolling the primary term of the lease from 

the date that the lessee received a letter from the lessor's attorney stating that the 

lease was "forfeited"). This court's tolling order will continue through a timely notice 

of appeal to the Ohio Supreme Court, until that Court accepts or declines jurisdiction. 

See, e.g., Hupp, supra, at ¶ 26 (drawing similar parameters to the equitable tolling 

order); and Claugus at ¶ 34–40 (denying writs challenging order). 

Conclusion 

{¶36} The Lease is not perpetual; rather, it has a primary term of a definite 

duration of five years—which allows for the payment of delay rental payments only 

during the primary term—followed by a secondary term that extends the Lease if 

certain conditions are met. Accordingly, Oxford Oil's first, second, fourth, fifth and 

seventh assignments of error are meritorious, and the judgment of the trial court is 

reversed and the case remanded for partial summary judgment to be entered in favor 

of Oxford Oil on the Wests' perpetual lease counterclaim. This renders Oxford Oil's 

third assignment of error moot. 
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{¶37} It follows that it was error to order the Wests to return delay rental 

payments and to order the County Recorder to place on the record an entry releasing 

the parties' Lease. Accordingly, Oxford Oil's sixth assignment of error is meritorious, 

and the judgment of the trial court is reversed. 

{¶38} As the decision granting the Wests' partial summary judgment motion 

and denying Oxford Oil's hinged solely on the determination that the Lease was 

invalid, the trial court did not address the merits of the remainder of either the Wests' 

counterclaims or Oxford Oil's declaratory judgment claim. Accordingly, Oxford Oil's 

eighth assignment of error is meritorious in part, thus these remaining claims are 

remanded to the trial court to be adjudicated as applicable. Finally, Oxford Oil's 

motion for equitable tolling is granted, retroactively to August 8, 2011, and continuing 

until a timely notice of appeal is filed with the Ohio Supreme Court, and continuing 

thereafter until that Court accepts or declines jurisdiction. 

Donofrio, P. J., concurs. 

Robb, J., concurs.