[Cite as Zimmerview Dairy Farms, L.L.C. v. Protege Energy III., L.L.C., 2022-Ohio-1282.]

IN THE COURT OF APPEALS OF OHIO

FOURTH APPELLATE DISTRICT

WASHINGTON COUNTY

ZIMMERVIEW DAIRY FARMS, :

LLC, ET AL., :

: Case No. 21CA1

Plaintiffs-Appellees, : 

:

v. : DECISION AND JUDGMENT 

: ENTRY

PROTÉGÉ ENERGY III : 

LLC, :

: 

 Defendant-Appellant. : 

_____________________________________________________________

APPEARANCES:

J. Kevin West, Dallas F. Kratzer, III, Steptoe & Johnson PLLC, Columbus, 

Ohio, Robert L. Paddock, Buck Keenan LLP, Houston, Texas, Pro Hac 

Vice, for Appellant.

Matthew C. Carlisle, Adam J. Schwendeman, Thiesen Brock, LPA, 

Marietta, Ohio, for Appellees.

_____________________________________________________________

Smith, P.J.

{¶1} Defendant-Appellant Protégé Energy III LLC, “Protégé,” 

appeals the December 18, 2020 Decision and Judgment Entry of the 

Washington County Court of Common Pleas. Protégé conducted gas and oil 

operations on property owned by Plaintiffs-Appellees Zimmerview Dairy 

Farms, LLC and Zimmerview Properties, LLC, collectively “Zimmerview,” 
Washington App. No. 21CA1 2

in 2015. Later, Zimmerview brought various claims against Protégé, 

including breach of contract, conversion, and trespass. 

{¶2} After a bench trial, the trial court found in favor of Zimmerview 

and awarded Zimmerview $819,093.00 on the above claims. Protégé 

challenges the trial court’s findings on Zimmerview’s claims and the 

damage awards. However, based upon basic principles of contract law in 

Ohio and our review of the evidence presented at trial, we find no merit to 

the arguments offered in Protégé’s five assignments of error. We find there 

is competent and credible evidence to support the trial court’s judgment in 

this matter. Accordingly, we overrule all assignments of error and affirm the 

judgment of the trial court. 

FACTUAL AND PROCEDURAL BACKGROUND

{¶3} The following facts were adduced at a bench trial in the 

Washington County Court of Common Pleas on September 29, 2020. Dean 

Zimmer and his brother Brent Zimmer are the members of Zimmerview 

Dairy Farm, LLC. Zimmerview owns land and maintains a farming 

operation at 700 Zimmer Road in Washington County. The farm has been in 

the Zimmer family since 1926. Dean Zimmer has worked the family farm 

his entire life, and before that, his father and grandfather worked and 

managed the farm. The farm started out as a dairy farm, switched to beef, 
Washington App. No. 21CA1 3

and currently is a beef-feeding operation. The Zimmers grow corn, 

soybeans, hay, and alfalfa. 

{¶4} In January 2014, Dean Zimmer, on behalf of Zimmerview, and 

MNW Energy LLC, entered into an Oil and Gas Lease. James Vuksic, who 

testified at trial, owned shares in MNW Energy LLC. The Oil and Gas 

Lease was eventually assigned to Protégé.

{¶5} Tarah Fagan represented Protégé’s interests in the subsequent 

contract negotiations. Due to difficulty in the negotiations, Dean Zimmer 

asked James Vuksic to mediate the contract negotiations. Vuksic had 

assisted Protégé with negotiations in the past. Vuksic has been involved in 

the oil and gas industry for 30 to 40 years. In addition to the original Oil and 

Gas Lease, the parties eventually entered into three additional contracts:

1. The Supplemental Agreement of the Parties;

2. The Surface and Subsurface Use Agreement1; and,

3. The Damage Release Agreement.

The above four contracts were admitted as joint exhibits at trial. Additional 

information regarding the pertinent contract negotiations will be set forth 

below.

1Testimony indicates the Surface and Subsurface Use Agreements simply provided for an easement to 

construct the well pad on the Zimmerview property. 
Washington App. No. 21CA1 4

{¶6} Protégé used 13.5 acres of the Zimmer farm during construction 

of what became known as the Caywood well pad, five for the well pad and 

8.5 for the hillside. Core drilling began in January 2015. Brush and tree 

removal began in March 2015. Fences were constructed in April 2015. 

Topsoil removal began in May 2015. Huge trucks moved the topsoil to a

stockpile at an agreed-upon location. 

{¶7} In June 2015, there were multiple extremely heavy rains. Dean 

Zimmer identified a photo exhibit showing the extreme runoff of brown 

water which took topsoil with it. The topsoil ran into a creek which 

bordered the Zimmer farm. Dean Zimmer identified several photographs 

which showed how the hillside looked after every rain with the topsoil 

stockpile running downhill. 

{¶8} Protégé hired Great Lakes Construction Company, “Great 

Lakes,” to re-seed the area. However, the rains washed the seed away and 

gullies formed. During these efforts, topsoil was not replaced. The topsoil 

continued to flow downhill. There were three initial attempts to re-seed the 

hillside.2 Each time the rains washed the seed away and gullies formed. 

2Protégé witness Brian Plautz testified that hydroseeding is the process of applying grass seed and fertilizer 

mixed together with water to slopes using a truck. 
Washington App. No. 21CA1 5

{¶9} Mr. Zimmer and his brother spoke to Protégé’s CEO about their 

concerns in August 2015. Great Lakes left the site in early fall 2015, leaving 

some gullies behind. Within a month or two, Zimmer testified there were 

four-foot canyons and gullies running through the hillside. Zimmer also 

testified that large boulders were left behind. 

{¶10} The Zimmers also contacted the Ohio Department of Natural 

Resources, “ODNR.” ODNR inspected the well pad area and issued a notice 

to Protégé that they needed to reclaim the area.3 On the fourth attempt at 

reclamation, Protégé used a company called Hydrogreen. 

{¶11} Hydrogreen repositioned some of the boulders and moved them 

into piles. Hydrogreen “tracked” the rough spots in the gullies and sprayed 

the hillside again. Hydrogreen left in June 2016. After the first rain, the 

gullies reappeared even deeper. Zimmer testified that gullies create

problems in farming because animals can get hurt and because it is 

dangerous to use farm or heavy equipment near gullies.

3Oil and gas reclamation begin long before the completion of operations at an oil and gas site. Rather it is 

an ongoing process, beginning before site construction and continuing through the life of an oil and gas 

production well and its associated facilities. Following reclamation, an inspector checks for proper recontouring of the site, the return of topsoil to disturbed areas, and completion of proper re-seeding. 

Reclamation is successful when it has established a self-sustaining, vigorous, diverse, native plant 

community that will control erosion and non-native plant invasion. See U.S.Department of the Interior, 

Bureau of Land Management, Reclamation. https://www.blm.gov/programs/energy-and-minerals/oil-andgas/reclamation. Accessed December 14, 2021. 
Washington App. No. 21CA1 6

{¶12} When Protégé left the jobsite, erosion and landscaping issues 

still existed.4 Protégé left parts of fence behind. Both water and telephone 

lines were exposed. There was unsightly vegetation. Mr. Zimmer described 

the well pad area as an “inconvenience and an eyesore.” 

{¶13} Zimmer testified he had to remove a three-strand fence placed 

by the contractors. When cattle attempted to go through the fence they were 

injured. Zimmer testified the water line was exposed four to five hundred 

feet. Prior to the construction, Zimmer never had Marestail, “an invasive 

weed that spreads extremely fast.” He testified the weeds do not hold the 

topsoil. Zimmer testified the property was not usable for farming. 

{¶14} Through their attorney, the Zimmers made Protégé aware of the 

issues with the condition of the property. Protégé sent Dean Zimmer a 

check but Zimmer was advised to send it back. Subsequently, Zimmerview 

filed its complaint against Great Lakes and Protégé for breach of contract, 

conversion, trespass, additional trespasses, and misappropriation of images 

and intellectual property on September 20, 2018. Protégé filed an Answer 

denying all claims.5

4One of Protégé’s witnesses, Benjamin Wright, testified that water running across bare soil causes it to 

move or “erode.” A “slip” is when water saturates a slope to the point that the soil becomes too heavy to 

stay on a slope and then a large chunk of soil breaks off the slope.

5Great Lakes was later dismissed from the action. Furthermore, the claims for additional trespasses, 

misappropriation of images and intellectual property were also dismissed. 
Washington App. No. 21CA1 7

{¶15} Protégé filed a motion for summary judgment which was 

denied.6 The parties proceeded to a bench trial on September 29, 2020. 

Zimmerview presented the in-person testimony of several witnesses: Dean 

Zimmer, James Vuksic, William “Billy” H. Burkhart II, and Larry Lang. As 

indicated above, the contracts the parties entered were stipulated as joint 

exhibits. In addition, Zimmerview offered Exhibits 1-55 into evidence. 

Protégé did not oppose the admission of these exhibits. The 55 exhibits 

included letters to Protégé; photographs of invasive weeds after the 

Hydroseed application in 2016; photographs of the Zimmer property in 

January and September 2020; estimates provided by Billy Burkhart and 

Larry Lang; a photograph of the topsoil stockpile; and Dean Zimmer’s out of 

pocket expenses. 

{¶16} Protégé did not present witnesses in person at trial, but instead 

relied on depositions of the following persons: Jason Pugh, Brian Plautz, 

Benjamin Wright, and Tarah Fagen.7 Jason Pugh is a petroleum engineer. 

6Zimmerview also filed a motion to join an additional party, Verdun Oil Company, LLC, under Civ.R. 19, a 

motion which the trial court granted. However, the record does not reflect that Verdun was subsequently

served and made a party to the proceedings. In State e x rel. Gill v. Winters, 68 Ohio App.3d 497, 589 

N.E.2d 68, 73, (4th Dist.1990), this court noted that pursuant to Civ.R. 19(A), the trial court is “vested with 

a substantial amount of discretion in determining whether a party is necessary in the sense that in his 

absence complete relief cannot be afforded among those already parties.” This court further emphasized 

the mandatory language of Civ. R. 19(A). The docket in this case demonstrates that Verdun Oil Company, 

LLC was never served and made a party. Neither party has addressed this on appeal. In Gill, this court 

also pointed out that joinder may be waived. Given that Zimmerview has not addressed this issue, we 

conclude the failure to join Verdun Oil Company, LLC, as ordered by the trial court, has apparently been 

waived. 

7Tarah Fagen’s deposition was a discovery deposition while the others were evidentiary depositions. As 

observed by the appellate court in the 10th district, we are cognizant that Civ.R. 32, which governs the use 
Washington App. No. 21CA1 8

He was previously employed by Protégé as operations manager. He was 

responsible for gas production, operations, oil and gas well completion, and 

any kind of surface construction that was required for oil and gas operations. 

{¶17} Pugh testified that when Great Lakes excavated the hillside, 

boulders “popped out.” The workers tried to break them up into smaller 

pieces and make them part of the material. Some were removed to a 

particular area on the site at Mr. Zimmer’s direction. Protégé also repaired 

erosions and “slips,”

8

the main issues relating to the well pad. Protégé 

monitored and fixed these issues as needed. These issues were expected 

surface and subsurface damages. 

{¶18} Brian Plautz holds a degree in civil engineering. He was 

project manager for Great Lakes Construction Company. Plautz’s job 

entailed controlling the documentation and financial aspects of the project. 

Plautz testified he was familiar with oil and gas operations at Zimmerview. 

He visited the construction site once every two weeks. He testified that at 

the end of Great Lakes’ work, there were no extraordinary or unusual issues 

with erosions or slips, re-planting or re-seeding, or rocks and boulders. 

of depositions, does not distinguish between discovery depositions and evidentiary depositions. See Fifth 

Third Bank of Columbus v. Margolis Family Ltd. Partnership, 10th Dist. Franklin No. 97APE-05-693, 

1997 WL 770966, at *4. “However, where * * * the credibility of the witness is a vital factor, the use of a 

pretrial discovery deposition ‘is an inadequate substitute for the presence of that witness.’ ” Id. quoting 

Loinez v. E.G. & G., Inc. (C.A.1 1990), 910 F.2d 1, 8.

8Pugh testified a slip is where an embankment fails and the material of the embankment becomes dislodged 

because of a weak point. 
Washington App. No. 21CA1 9

Furthermore, neither Protégé nor Zimmerview informed Great Lakes that 

they were not satisfied with Great Lakes’ work. 

{¶19} Benjamin Wright holds degrees in environmental science and 

watershed management. He is owner and manager of Hydrogreen. Wright 

testified he was familiar with aspects of the oil and gas operations at 

Zimmerview. However, he was on the site only twice. 

{¶20} Tarah Fagen testified she holds a degree in energy management 

and finance from the University of Oklahoma. Ms. Fagen is vice president 

of land for Protégé. Fagen testified she manages the leasing negotiations, 

pre-drilling, and title work. She also handles land owner complaints relating 

to ongoing operations. Fagen testified she worked with a team which 

included Jason Pugh. Fagen was familiar with the Zimmer well pad. 

{¶21} After hearing the evidence presented by the parties, the trial 

court granted judgment in favor of Zimmerview and against Protégé on the 

breach of contract, conversion, and trespass claims. On the breach of 

contract claim for failing to properly reclamate the Zimmer property, the 

trial court awarded damages in the amount of $349,093.00. On the claim for 

conversion of topsoil, the trial court awarded $450,000.00. On the claim for 

breach of contract/trespass relating to the Zimmers’ lack of access to their 
Washington App. No. 21CA1 10

property, the court awarded $20,000.00. This timely appeal followed. 

Additional facts will be set forth where pertinent. 

ASSIGNMENTS OF ERROR

I. THE TRIAL COURT ERRED BY FINDING 

PROTÉGÉ HAD A CONTINUING DUTY TO 

REMEDY DAMAGES THAT WAS NOT PART 

OF THE PARTIES’ AGREEMENTS.

II. THE TRIAL COURT ERRED BY GIVING 

“CLEAN-UP OPERATIONS” AND 

“EXTRAORDINARY OR UNUSUAL”

DAMAGES DEFINITIONS THAT RENDERED 

OTHER PARTS OF THE PARTIES’ 

AGREEMENTS MEANINGLESS.

III. THE TRIAL COURT ERRED IN FINDING FOR 

ZIMMERVIEW ON ITS BREACH OF 

CONTRACT AND CONVERSION CLAIMS 

RELATED TO TOPSOIL.

IV. THE TRIAL COURT ERRED IN DETERMINING 

THE AMOUNT OF DAMAGES TO AWARD 

ZIMMERVIEW BECAUSE IT DID NOT APPLY 

THE PROPER MEASURE OF DAMAGES AND 

RELIED ON SPECULATION.

V. THE TRIAL COURT ERRED BY FINDING 

PROTÉGÉ HAD BREACHED ITS AGREEMENT 

WITH ZIMMERVIEW BY FAILING TO PAY 

ADDITIONAL RENTS, BY IGNORING THE 

PLAIN LANGUAGE OF THE AGREEMENT 

AND RELYING ON EXTRINSIC EVIDENCE.

STANDARD OF REVIEW FOR

CONTRACT INTERPRETATION
Washington App. No. 21CA1 11

{¶22} This appeal involves questions regarding interpretation of the 

contracts which governed the relationship and work of the parties. Legal 

issues involving contract interpretation are subject to a de novo standard of 

review. See S. P. Drilling Services Inc. v. Cooper Excavating, LLC, 4th

Dist. Adams No. 17CA1058, 2019-Ohio-55, at ¶ 14; Taylor Bldg. Corp. of 

Am. v. Benfield, 117 Ohio St.3d 352, 2008-Ohio-938, 884 N.E.2d 12, ¶ 37. 

See also Wiltberger v. Davis, 110 Ohio App.3d 46, 51-52, 673 N.E.2d 628 

(1996).

{¶23} Further, when a trial court makes factual findings supporting its 

legal conclusions regarding a contract, those factual findings must be 

reviewed with great deference and upheld if some competent credible 

evidence exists to support them. See S.P. Drilling Services Inc. at ¶ 14; 

Taylor at ¶ 38, and Wiltberger at ¶ 52. “The underlying rationale of giving 

deference to the findings of the trial court rests with the knowledge that the 

trial judge is best able to view the witnesses and observe their demeanor, 

gestures and voice inflections, and use these observations in weighing the 

credibility of the proffered testimony.” GM Gas Exploration, Inc. v 

McClain, 4th Dist. Athens No. 1438, 1991 WL 163644 (Aug. 13, 1991), at 

*2. In our review, we look to see if the facts and the resulting judgment are 

both supported by the weight of the evidence. Patton v. Patton, 4th Dist. 
Washington App. No. 21CA1 12

Adams No. 01CA712, 2001-Ohio-2599, *2. Furthermore, appellate courts 

will not reverse judgments as being against the weight of the evidence when 

those judgments are supported by some competent and credible evidence.

Id. (internal citations omitted).

I. THE TRIAL COURT ERRED BY FINDING PROTÉGÉ 

HAD A CONTINUING DUTY TO REMEDY 

DAMAGES THAT WAS NOT PART OF THE 

PARTIES’ AGREEMENTS. 

II. THE TRIAL COURT ERRED BY GIVING “CLEAN-UP 

OPERATIONS” AND “EXTRAORDINARY OR 

UNUSUAL” DAMAGES DEFINITIONS THAT 

RENDERED OTHER PARTS OF THE PARTIES’ 

AGREEMENTS MEANINGLESS.

LEGAL ANALYSIS

{¶24} Because we find these assignments of error to be interrelated,

we consider them jointly. The trial court found that Protégé had a 

continuing duty to fix and repair gully and erosion issues. The court further 

determined that cleanup operations encompassed activities which occurred 

in the process of returning the land to Zimmerview in a similar condition as 

it was prior to construction, and that the failures in cleanup operations led to 

the current damaged state of the property. Thus, the court awarded 

judgment in favor of Zimmerview and against Protégé in the amount of 

$349,093.00, plus interest, due to Protégé’s breach of contract for failure to 
Washington App. No. 21CA1 13

properly reclamate and return the property to Zimmerview in a similar 

condition as prior to construction of the well pad. 

{¶25} Under the first assignment of error, Protégé contends that 

neither the Oil and Gas Lease, nor the Damage Release Agreement contain

provisions creating a continuing duty to correct erosion issues. Protégé 

asserts that the trial court went outside of the plain language of the 

agreements to “invent” a continuing duty to remedy damages caused to the 

Zimmerview property. According to Protégé, the trial court then concluded 

that Protégé had breached its agreements with Zimmerview by failing to 

fulfill the “newly-invented duty.” Protégé asserts the trial court thereby 

erred as a matter of law. 

{¶26} Under the second assignment of error, Protégé argues that the 

trial court erred with regard to its interpretation of “cleanup operations” and 

“extraordinary” or “unusual” damage, as contained in the Damage Release 

Agreement. At trial, Zimmerview argued that Protégé failed to clean up the 

property after it concluded oil and gas operations and that the remaining 

damages were “extraordinary or unusual.” Protégé contends that the trial 

court erred by its interpretation of “extraordinary or unusual,” and then by 

relating these terms to the trial court’s “newly-created duty.” Protégé argues 

that this court should find that Zimmerview is not entitled to damages under 
Washington App. No. 21CA1 14

the “clean-up operations” and “extraordinary or unusual” provisions of the 

Damage Release Agreement. 

{¶27} “ ‘In construing a written instrument, the primary and 

paramount objective is to ascertain the intent of the parties so as to give 

effect to that intent.’ ” Lang, supra, at ¶ 17, quoting Shafer v. Newman Ins. 

Agency, 4th Dist. Highland No. 12CA11, 2013-Ohio-885, at ¶ 10, citing

Aultman Hosp. Assn. v. Community Mut. Ins. Co., 46 Ohio St.3d 51, 53, 544 

N.E.2d 920 (1989). “ ‘When the terms of a contract are unambiguous, 

courts will not, in effect, create a new contract by finding an intent not 

expressed in the clear language employed by the parties.’ ” Waina v. 

Abdallah, 8th Dist. Cuyahoga No. 86629, 2006-Ohio-2090, at ¶ 31, quoting

Shifrin v. Forest City Ents., 64 Ohio St.3d 635, 597 N.E.2d 499 (1992). 

“ ‘Courts must give common words their ordinary meaning unless manifest 

absurdity would result or some other meaning is clearly evidenced from the 

face or overall contents of the written instrument.’ ” Shafer at ¶ 10, quoting

In re All Kelley & Ferraro Asbestos Cases, 104 Ohio St.3d 605, 2004-Ohio7104, 821 N.E.2d 159, ¶ 29.

{¶28} “ ‘If a contract is clear and unambiguous, the court need not go 

beyond the plain language of the agreement to determine the parties' rights 

and obligations; instead, the court must give effect to the agreement's 
Washington App. No. 21CA1 15

express terms.’ ” Lang, supra, at ¶ 18, quoting Uebelacker v. Cincom Sys., 

Inc., 48 Ohio App.3d 268, 271, 549 N.E.2d 1210 (1st Dist.1988). 

“Ambiguity exists only when a provision at issue is susceptible of more than 

one reasonable interpretation.” Lager v. Miller–Gonzalez, 120 Ohio St.3d 

47, 2008-Ohio-4838, 896 N.E.2d 666, ¶ 16. “Extrinsic evidence is 

admissible to ascertain the intent of the parties only when the contract is 

unclear or ambiguous, or where surrounding circumstances give plain 

language special meaning.” Highland Drilling, Inc. v. McAlester Fuel Co.,

4th Dist. Washington No. 99CA08, 1999 WL 1058785, *3 (Nov. 16, 1999).

{¶29} As indicated, the trial court specifically found a continuing duty 

to repair the erosion issues on the Zimmerview property. Paragraph 31 of 

the Oil and Gas Lease provides: 

Surface Restoration: Removal of Lessee’s Property. 

Lessee shall construct or install all well sites, access roads, 

pipelines, structures and other facilities, in a manner that 

would reasonably minimize any related soil erosion. 

Should Lessee materially damage any part of the surface, 

* * *, it is expressly agreed and understood that Lessee 

shall use commercially reasonable efforts to repair and 

restore such damaged portion of the surface of the Leased 

Premises as nearly as practicable to the condition in 

which said land existed before the commencement of 

operations within one hundred eighty (180) days after well 

completion or pipeline installation. (Emphasis added.) * *

* All restoration work shall be done at the sole expense of 

Lessee. 

{¶30} Paragraph Five of the Damage Release Agreement 
Washington App. No. 21CA1 16

provides:

Grantor does hereby discharge and release Grantee, * * *, 

from all actions, causes of actions, suits, claims and 

demands whatsoever for and on account of any damages 

to the appurtenances to the Property or to growing crops 

or timber thereon; for and on account of any interference 

with livestock operations caused by or as a result of 

Grantee’s exploration and drilling for and operation and 

production of oil and gas and related substances; and any 

surface and subsurface damages caused by or incurred in 

connection with the construction of the [well pad at issue]. 

{¶31} In response to the first assignment of error, Zimmerview asserts

that the Oil and Gas Lease is ambiguous as to Protégé’s agreement to restore 

the property using commercially reasonable efforts. Therefore, the trial 

court did not err when it admitted extrinsic evidence and, based on the 

evidence, found a continuing duty to repair the property. For the reasons 

which follow, we agree with Zimmerview. 

{¶32} We start by examining the testimony the trial court heard on the 

above issues. Dean Zimmer testified that shortly after the Oil and Gas Lease 

was signed Protégé wanted to put a well pad on his property so discussions 

ensued. Zimmer insisted on a Supplemental Agreement because he did not 

want the well pad on his property. Zimmer testified that initially the parties 

could not agree where the well pad was to be located. He later agreed to the 

requested location with multiple stipulations because the location was “in 
Washington App. No. 21CA1 17

the middle of good property,” and very close to Zimmer’s personal 

residence.

{¶33} Dean Zimmer also testified that early on negotiations “broke 

down” with Protégé’s representative, Tarah Fagan. Zimmer asked James 

Vuksic to mediate. Mr. Zimmer testified at length as to his expectations that 

the Zimmerview property would be fully restored after the well pad was 

constructed. Mr. Zimmer testified:

The number one agreement we - - stressed very strongly 

from day one, was we want it to look nice and be able to 

go back and be able to farm like it was before, and after 

the well had - - you know, was finished. Our family, 

neighbors, whatever, I think kind of everybody in the area 

takes pride in the looks of our farm, and we do too, and we 

work hard at it. And we didn’t want the well to be an 

eyesore. 

{¶34} Mr. Zimmer testified the land around the pad never had erosion 

issues or water drainage issues before the pad construction. There were no 

issues with invasive vegetation. He testified, “It was lush grass, pasture. 

* * * And it was very fertile.”

{¶35} Mr. Zimmer testified that the landscaping was the subject of 

Paragraph 11 of the Oil and Gas Lease. He requested that trees be planted to 

block the view of the well pad and tanks. Mr. Zimmer reiterated, “[W]e 

wanted it returned to look good and be farming and usable, very usable 

property.”
Washington App. No. 21CA1 18

{¶36} Mr. Zimmer testified he does not like looking at the well pad

outside his back window. He is no longer able to use the five acres where 

the well pad is located. Rocks and boulders were left in the area after 

construction ceased. 

{¶37} Jason Pugh, Protégé’s project manager at the time, testified he 

was familiar with the Oil and Gas Lease between Protégé and Zimmerview. 

Pugh testified that he “provided limited input on certain terms but did not 

negotiate” the Oil and Gas Lease, the Supplemental Agreement, the Surface 

Use Agreement, and the Damage Release Agreement. He testified his role 

was to “opine to our land department about the terms we could and couldn’t 

agree to.” Pugh identified the Damage Release Agreement and testified that 

this agreement released Protégé from damages incurred as a result of oil and 

gas operations on the site. The Damage Release Agreement did not stipulate 

any particular work to be performed. 

{¶38} Generally, Pugh testified that Protégé agreed to restore the 

slopes on the Zimmerview property as part of the Supplemental Agreement, 

and that Protégé had fulfilled this requirement. He identified the final asbuilt survey performed by Great Lakes after construction was substantially 

completed. He testified the slopes conformed with what Protégé agreed to 

do and there were no unusual issues. 
Washington App. No. 21CA1 19

{¶39} Pugh testified that after the construction was complete, Protégé 

“continued to maintain any instances of erosion * * * until the site was 

completely vegetated and re-seeded.” Pugh also identified the Daily Reports 

prepared by the construction inspector. The reports documented erosions 

located on the property and recorded efforts to mitigate and manage the 

erosions until the construction was complete. Pugh testified that the reports 

reflected that re-seeding and re-planting was performed as required. 

{¶40} Pugh testified there are unique aspects about every job and well

pad. In this case, it took several re-seeding attempts to get the grass to grow. 

He explained that a bare hillside exposed to weather conditions is more 

susceptible to erosion. 

{¶41} Pugh also identified a notice from the ODNR regarding erosion 

issues that needed remedied. Pugh testified they repaired the issues as 

required. Great Lakes used Penn Line twice to do the re-seeding. The first 

seeding in July 2015 did not establish well so Penn Line returned, as a 

warranty repair, and re-seeded parts of the side that did not germinate.

{¶42} Pugh testified Protégé hired Hydrogreen because seed on the 

south slope did not establish and was causing erosion issues of the topsoil as 

documented by the ODNR. Protégé developed a restoration plan with 

Hydrogreen. Hydrogreen performed the re-seeding work in April 2016. 
Washington App. No. 21CA1 20

Pugh identified Hydrogreen Daily Reports which documented the re-seeding 

and re-planting efforts performed by Hydrogreen. Pugh testified 

Hydrogreen was successful in re-planting and re-seeding. None of the slips 

were extraordinary or unusual issues. Protégé satisfied the obligation of the 

ODNR demand letter. Pugh identified Exhibit D10, pictures of the well pad 

site taken in Spring 2016, which documented Hydrogreen’s work. He

testified there were no erosions or slips in the pictures because they had been 

remedied before or during the operation. 

{¶43} Pugh testified that the rocks or boulders were moved as directed 

by Mr. Zimmer. He testified there were no issues with rocks or boulders 

considered to be extraordinary or unusual. Pugh admitted that possibly large 

rocks were missed during the final cleanup operations and left behind in the 

embankment. Pugh testified Protégé did leave telephone or waterlines 

exposed, however, Protégé did not have an agreement making it responsible 

to bury the lines.

{¶44} Exhibit D9 was the final punch list kept in the course of 

Protégé’s business. Pugh described the cleanup efforts in detail. Pugh 

testified all the items were completed and he initialed the document. Pugh is 

not aware of any erosion happening after the site was re-seeded in spring 

2016. The last time Pugh was at the Zimmerview property was April 12, 
Washington App. No. 21CA1 21

2019. He viewed the property from the roadside and did not see any 

additional erosions or slips that needed repaired. 

{¶45} Pugh testified that he is unfamiliar with the exact definition of 

unusual or extraordinary in this circumstance. To his knowledge, there’s no 

standard industry definition. Pugh disagreed that the gullies developing 

quickly would be considered unusual or extraordinary because the nature of 

the property changed significantly when the embankment supporting the 

well pad was built. Importantly, Pugh testified that if gullies appeared, it 

was the pad owner’s responsibility to fix erosion and gully issues. He 

further testified that up to the time Protégé sold the well pad and well site, 

Protégé was responsible for fixing erosion and gully issues. If re-seeding 

failed, it was still the pad owner’s responsibility. This testimony was key to 

the trial court’s analysis.

{¶46} Finally, during Tara Fagen’s testimony, she agreed that the 

Zimmer property was restored to “industry standards” and that restoration 

occurred “no later than June 21st, 2016.” She testified Protégé spent a great 

deal of time and money making repairs due to Dean Zimmer’s constant 

complaints about the slopes, drainage, seeding, and temporary lines. 

However, Fagen also admitted that she relies on the people in the field doing 
Washington App. No. 21CA1 22

the work. She does not have a personal or professional opinion for what 

constitutes acceptable industry standards for reclamation. 

{¶47} In the Findings of Fact beginning at Page 3, the trial court wrote 

as follows in paragraphs 15, 16, and 48:

15. Dean Zimmer testified that he sought other specific 

assurances from Protégé regarding slope issues, slip 

repair, fencing, guards and gates, as well as landscaping.

16. Prior to the construction of the drilling unit, 

Zimmerview, via Dean Zimmer[,] and Tarah Fagan of 

Protégé, entered into negotiations regarding the previously 

described issues. 

48. Protégé did not present any evidence regarding the 

intent of the parties regarding the Damage Release 

Agreement in Exhibit J-4. 

{¶48} In the Conclusions of Law, beginning at Page 23, the trial court 

further stated as follows in paragraphs 30-42 regarding claims for damage 

related to cleanup/reclamation:

30. All the evidence presented by Zimmerview indicates 

that the property has suffered substantial erosion and 

damage issues that have never been corrected by Protégé. 

31. Protégé did not present any evidence disputing the 

severity of the property damage. Instead, as to these 

damage issues, Protégé’s entire argument rests upon the 

Damage Release Agreement.

34. The Damage Release Agreement was not an allencompassing release, there were exceptions in the 

agreement that exempted the release from clean up 

responsibilities and operations that Protégé was required 
Washington App. No. 21CA1 23

to complete. Further, there was an exemption for 

extraordinary or unusual damages.

35. The terms “cleanup operations” and “extraordinary or 

unusual damages” are not defined in the Damage Release 

Agreement. 

38. The definition of these terms is not an argument that 

needs to be addressed by this Court because Protégé has 

acknowledged that there is a continuing duty and 

obligation to correct erosion issues. Jason Pugh testified 

to this duty. 

39. This continuing duty regarding these issues also 

makes sense in light of the history to attempt to repair the 

land. The evidence showed that Protégé made four 

attempts to correct issues with the property. During those 

four attempts, Protégé never attempted to utilize the 

Damage Release Agreement to state it no longer had a 

responsibility to correct the erosion issues.

40. The issues that Protégé previously corrected in its 

prior four attempts are the same issues that currently exist 

with the property.

41. The Court hereby determines that the duties of Protégé 

have not changed and are the same as what they were in 

the prior four attempts to correct the issues. Therefore, 

Protégé has an obligation to correct the erosion issues that 

it previously failed to address. Protégé breached its 

general contractual obligations to Zimmerview as 

generally outlined in [exhibits] by failing to properly 

cleanup/reclamate the land.

42. With Jason Pugh’s testimony regarding the ongoing 

duties of the pad owner, the Court determines that the 

Damage Release Agreement is inapplicable for the 

damages claimed by Zimmerview. The Release is also 

inapplicable due to exceptions contained in the release. 
Washington App. No. 21CA1 24

{¶48} While the trial court did not make an explicit finding that the 

Oil and Gas Lease was ambiguous, the trial court’s other findings support 

this conclusion. The lease addresses surface restoration at Paragraph 31 and 

generally provides that the Lessee “shall use commercially reasonable 

efforts to repair and restore such damaged portion of the surface of the 

Leased Premises as nearly as practicable to the condition in which said land 

existed before commencement of operations.” Paragraph 31 further 

provides that “[a]ll restoration work shall be done at the sole expense of 

Lessee.” The lease does not define “commercially reasonable efforts” nor 

state how many efforts are required to restore the property. The trial court 

likely viewed this language, especially “commercially reasonable efforts,” 

as open-ended and ambiguous. Given the ambiguity surrounding Protégé’s 

duty to restore the property using commercially reasonable efforts, the trial 

court properly allowed extrinsic evidence which explained the parties’ 

intent, and which described the restoration efforts. The trial court appears to 

have relied heavily on Protégé’s own witness, Jason Pugh, in reaching its 

conclusions. 

{¶49} Here, the trial court judge served as the trier of fact. Weight 

and credibility of the evidence are issues that the trier of fact must 

determine. See Cooper, supra, at ¶ 28; State v. Frazier, 115 Ohio St.3d 139, 
Washington App. No. 21CA1 25

2007-Ohio-5048, 873 N.E.2d 1263, ¶ 106; State v. Dye, 82 Ohio St.3d 323, 

329, 695 N.E.2d 763 (1998). A trier of fact may choose to believe all, part 

or none of the testimony of any witness who appears before it. See State v. 

Colquitt, 188 Ohio App.3d 509, 2010-Ohio-2210, 936 N.E.2d 76, ¶ 10, fn. 1

(4th Dist.); State v. Nichols, 85 Ohio App.3d 65, 76, 619 N.E.2d 80 (4th Dist. 

1993). Based on our review of the trial testimony, we find the trial court had 

some competent credible evidence to support its determination that Protégé 

had an ongoing duty to restore the Zimmerview property. Accordingly, we 

find no merit to the first assignment of error. It is hereby overruled. 

{¶50} Under the second assignment of error, Protégé argued that the 

trial court erred with regard to its interpretation of the terms “cleanup 

operations” and “extraordinary or unusual” damages. Dean Zimmer 

considered the damage left by Protégé to be unusual and extraordinary. He 

testified:

The production of the ground is very limited to none. The 

- - washed gullies is a severe problem, safety and cattlewise. And production is - - has continued not to - - growth 

is not - - has not continued to - - growth is not- - of grass 

has not returned to where we could even, this whole length 

of time, to have any production farm-wise off of it.

{¶51} The trial court observed as set forth above that the terms 

“cleanup operations” and “extraordinary or unusual damages” are not 

defined in the Damage Release Agreement. In response to the second 
Washington App. No. 21CA1 26

assignment of error, Zimmerview argues that the trial court did not err in its 

interpretation of the contract terms as the court used a reasonable, logical, 

and plain application of the terms based on the evidence presented. 

{¶52} Both parties somewhat mischaracterize the trial court’s 

findings. As indicated above, the court further determined that cleanup 

operations encompassed activities occurring in the process of returning the 

land to Zimmerview in a similar condition as it was prior to construction, 

and that the failures in cleanup operations led to the current damaged state of 

the property. Id. at 36. In the Conclusions of Law, Page 24, the trial court 

further observed:

37. Both parties had differing views on what was 

considered extraordinary or unusual. Protégé appeared to 

apply an unknown industry standard. Zimmerview 

applied a standard related to operations on the property 

since 1927 * * *. The Court determines that the 

development of 4-foot gullies where [none] had existed 

before is unusual and extraordinary. 

38. However, the definition of these terms is not an 

argument that needs to be addressed by this court because 

Protégé has acknowledged that there is a continuing duty

to correct erosion issues. 

{¶53} Based on our review of the trial transcript, we agree with the 

trial court’s conclusion. The definition of the pertinent terms is unnecessary 

given the court’s finding that Protégé’s failure to properly cleanup and 

restore the Zimmerview property led to its current damaged state, and that 
Washington App. No. 21CA1 27

Protégé had a continuing obligation to correct the erosion issues. 

Accordingly, we find no merit to Protégé’s second assignment of error and it 

is hereby overruled. 

 III. THE TRIAL COURT ERRED IN FINDING FOR 

ZIMMERVIEW ON ITS BREACH OF 

CONTRACT AND CONVERSION CLAIMS 

RELATED TO TOPSOIL. 

{¶54} “ ‘In order to succeed on a breach of contract claim, a party 

must prove the existence of a contract, the party's performance under the 

contract, the opposing party's breach, and resulting damage.’ ” Martin v. 

Jones, 2015-Ohio-3168, 41 N.E.3d 123, at ¶36 (4th Dist.), quoting

DePompei v. Santabarbara, 8th Dist. Cuyahoga No. 101163, 2015-Ohio-18,

at ¶ 20; Spectrum Benefit Options, Inc. v. Med. Mut. of Ohio, 174 Ohio 

App.3d 29, 2007-Ohio-5562, 880 N.E.2d 926, ¶ 25 (4th Dist.).

{¶55} To prevail on a claim for conversion, a plaintiff must prove “(1) 

plaintiff’s 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 

plaintiff’s property rights; and (3) damages,” Key Realty, Ltd. V. Hall, 2021-

Ohio-1868, 173 N.e.3d 831, at ¶ 95 (6th Dist.). 

{¶56} The Supplemental Agreement executed by the parties herein 

provides at Paragraph 3:
Washington App. No. 21CA1 28

Top Soil. The top soil piled as part of the pad construction 

site which is generally set forth in the area set forth in 

Exhibit 1 hereto shall be retained by Zimmerview. 

(Emphasis added.) It shall be placed in a mutually agreed 

upon location not to exceed 500 (five hundred) feet from 

the area noted on Exhibit 1 unless otherwise agreed upon. 

{¶57} Protégé argues that there was no breach of contract regarding 

the topsoil and no conversion of the topsoil stockpile. Protégé contends that 

the trial court improperly relied upon extrinsic evidence to find a breach of 

the contract and a conversion because the evidence presented at trial did not 

support a finding that the topsoil had been converted. Therefore, the trial 

court erred by finding for Zimmerview on these claims. 

{¶58} In response, Zimmerview seems to assert that the trial court 

relied upon the plain language of the Supplemental Agreement but also 

acknowledges that the trial court did examine extrinsic evidence in 

construing the ambiguous topsoil clause. Furthermore, Zimmerview asserts

the court relied upon competent and credible evidence to determine that 

there was both a breach of contract and a conversion of the topsoil. For the 

reasons which follow, we find the topsoil clause was ambiguous. While the 

trial court did not make an explicit finding of ambiguity, the trial court 

properly relied upon competent and credible extrinsic evidence in reaching 

its conclusion that the contract was breached and the topsoil converted. 
Washington App. No. 21CA1 29

{¶58} During his testimony, Mr. Zimmer explained the 

importance of topsoil and that lack of topsoil interferes with farming 

operations because crops need the organic material and nutrients 

within the topsoil. Prior to the project, the Zimmers had over six 

inches or more of topsoil on their properties. Mr. Zimmer testified:

The topsoil was to be retained by us. * * * We wanted it at 

the bottom of the LOD9area, just because of being easier 

access whenever it was used on our properties in the 

future. They said that was too far to move it. So we kind 

of went back and forth on where to—to put it, and then 

we—we did agree on the site that they did originally 

stockpile it, on top of the hill. 

{¶59} Mr. Zimmer further testified that there was a large gully 

at the bottom of the LOD construction area which he asked Protégé to fill, 

because Zimmerview would completely lose five acres for pasture and 

farmland. Zimmer wanted the gully filled so it would be farmable. Instead 

of a monetary agreement for the loss, Protégé agreed to give Zimmerview 

the topsoil in place of filling in the gully. 

{¶60} Mr. Zimmer denied Protégé’s arguments that Zimmerview did 

in fact “retain” the stockpile of topsoil. He testified the topsoil stockpile had 

washed away into a nearby creek while Protégé was in control of the LOD 

9LOD was not defined by any of the witnesses. The photographic exhibits reference the LOD area, which 

depict the construction area on the Zimmerview property. 
Washington App. No. 21CA1 30

construction area. Furthermore, the evidence in this matter demonstrates 

that Protégé used some of the stockpile of topsoil for purposes of its 

reclamation of the area. 

{61} James Vuksic testified that he assisted in negotiating 

Paragraph 3 regarding the topsoil: 

[W]e asked them to fill the - - the gully, and so that would 

be farmable. They said they could not do that. And 

instead of, you know, a monetary agreement on that, the 

topsoil, they agreed to give us the topsoil in place of that, 

in place of filling the gully.

{¶62} Vuksic continued:

So the long and the short is, they agreed that in lieu of 

either filling a ravine or in lieu of money- - I don’t - - and 

I honestly don’t recall which - - Dean agreed to take the 

top - - a pile of topsoil that was sitting there, in lieu of all 

that. They agreed to give it to him. And back and forth it 

went, as to how much it was, where it was going to be 

piled. Dean wanted it moved down close to the house or 

down to the bottom of the hill and they refused and said 

they would move it no more than 500 feet, and - - and 

pointed to the area where they would pile it for Dean, or 

for the Zimmers. And I went back to Dean and said, that’s 

all the farther they’re going to haul it. Do you want the 

dirt? And he said, Ok. We can move it ourself. [sic] And 

that was that.

{¶63} When asked about his understanding of what was supposed to 

happen to the topsoil at the end once Protégé left the site, Vuksic testified:

[L]ater he said, you know, they took the dirt and spread it 

over the hill, and I said well, then send them a bill for the 
Washington App. No. 21CA1 31

topsoil, because they took away your property. * * * They 

- - they stole his property. That was his. 

{¶64} Jason Pugh also testified regarding the agreement pertaining to 

the topsoil. Pugh testified that one of the first things done to begin 

construction is that all the topsoil from a particular site is stripped and 

gathered at a particular location so it can be kept. The topsoil is preserved 

so that it can then be reused at the end of the well pad construction to be respread over the entire site that is to be seeded. In this case as well, the 

topsoil that was excavated was put into the stockpile. The stockpile of 

topsoil was used per standard general construction practice, to re-spread over 

the entire site and used as the subgrade for seed that was applied to the site.

{¶65} Jason Pugh testified the Supplemental Agreement did not 

prohibit Protégé from using the stockpile of topsoil in this manner. He 

agreed that the extra topsoil not used for the actual pad acreage was used on 

the reclamation of the property. Pugh also admitted that the word “retained” 

was not defined by the agreement. However, Pugh testified that “retained” 

meant that the topsoil did not leave the site and was retained by the owner on 

the property. Protégé did not remove the stockpile of topsoil from the 

property but moved it to a mutually agreed upon location.

{¶66} Pugh agreed that in Paragraph 3 there is nothing addressing 

whether topsoil can be removed from the stockpile. There is nothing in 
Washington App. No. 21CA1 32

Paragraph 3 that allows the soil to be used for reclamation. He testified he 

did not know if the stockpile was gone at the end of construction. 

{¶67} Pugh testified that Great Lakes Daily Reports provide 

additional information regarding re-spreading of the topsoil. Pugh testified 

at the end of operations, Protégé and its contractors restored the topsoil to its 

former condition. He testified there were no extraordinary or unusual issues 

with the topsoil.

{¶68} Brian Plautz reviewed the Great Lakes Daily Reports. As part 

of the agreement with Protégé, Great Lakes replaced topsoil stripped from 

the area around the well pad. Great Lakes spread the topsoil on the slopes 

when finished. The topsoil was taken off site and put in a pile and then respread. Any remaining topsoil would have been left at the stockpile location. 

He testified that Great Lakes restored the slopes after construction. 

{¶69} Plautz testified he did not have a role in negotiating the 

contracts. He is not aware of the agreement between Zimmerview and 

Protégé regarding the topsoil stockpile. 

{¶70} Tarah Fagan’s testimony supported the argument that no 

breach occurred. She testified no topsoil was removed from the 

grounds. There was an agreement for the topsoil to be stockpiled in a 

certain area. It was to stay on Zimmer property and be stockpiled for 
Washington App. No. 21CA1 33

reclamation. The stockpile was not for Zimmer’s personal use. Fagan 

testified there were no negotiations about that. Fagan admitted that 

the formal agreement did not specifically spell out that the topsoil was 

to be used for reclamation. However, the topsoil was never removed 

from Zimmer’s property but was used to reclaim the property. In her 

opinion, the topsoil was still Zimmer’s property. 

{¶71} No one on behalf of Zimmerview testified as to what “retained” 

meant in the Supplemental Agreement. Clearly, Dean Zimmer’s testimony 

demonstrated that he expected to have all the topsoil stockpile and did not 

contemplate the topsoil stockpile would be re-spread and thus, considered to 

have been “retained” by him. 

{¶72} In the Findings of Fact and Conclusions of Law, the trial 

court recited many of the facts as set forth in the testimony above. 

Specifically, in the Conclusions of Law, Paragraph 8, the trial court 

observed that Protégé did not present any testimony or evidence regarding 

the intent of the topsoil provision contained in Exhibit J-2. The trial court 

analyzed as follows:

10. There is specific language in Paragraph 3 regarding a 

specific location for the topsoil stockpile. * * * The 

language in Paragraph three regarding the specific location 

as well as evidence of negotiations regarding the location 

indicate the intent that the topsoil stockpile was to be left 

for Zimmerview after construction was completed. There 
Washington App. No. 21CA1 34

would be no need for this location language if Protégé was 

simply going to utilize the topsoil stockpile for 

cleanup/reclamation shortly after excavation. 

11. Paragraph 2 of Exhibit J-2 indicates that the topsoil 

was to be a form of consideration.

12. The topsoil has no value as a form of consideration 

unless Zimmerview is allowed to retain the topsoil 

stockpile for its use. Further, the topsoil has no value as 

consideration if Protégé is allowed to use it for their own 

purposes. 

13. There is no language in Paragraph 3 of the 

Supplemental Agreement which allows further use of the 

topsoil stockpile.

15. Protégé’s arguments regarding compliance with 

Paragraph three by utilizing the topsoil in 

cleanup/reclamation efforts lack merit. Without Paragraph 

3, Protégé was already required to use commercially 

reasonable efforts to repair and restore the surface of 

Zimmerview’s property as nearly as practical to the 

condition in which the land existed before commencement 

of operations. Protégé was already operating under a 

contractual requirement to reclaim the land, thus 

Paragraph 3 would have no meaning pursuant to Protégé’s 

interpretation. 

17. Lastly Paragraph 3 indicates that the topsoil stockpile 

was not to be removed from its location “unless otherwise 

agreed upon.” This indicates at a minimum, that both 

parties would be required to have input before the 

stockpile could be moved from the agreed upon location. 

Protégé’s actions indicate that they utilized the stockpiled 

topsoil without seeking approval or agreement from 

Zimmerview. They utilized the topsoil at their own 

direction for their own needs on the construction site. 

There would be no need for language regarding mutual 
Washington App. No. 21CA1 35

agreement prior to removal of the stockpile unless it was 

intended that the stockpile remain intact for Zimmerview. 

18. Therefore, Protégé’s failure to leave the topsoil 

stockpile for Zimmerview constitutes a breach of contract. 

The actions of Protégé also indicate that Protégé converted 

the topsoil for its own use to complete 

cleanup/reclamation efforts for which it was already 

contractually obligated to complete, i.e., it used 

Zimmerview’s property to complete its contractual duties. 

{¶73} Upon our de novo review, we agree with the trial court’s sound 

reasoning which found Zimmerview had proven all elements of the breach 

of contract and conversion claims. The trial court implicitly found the 

contract language in the topsoil clause to be ambiguous and properly

admitted extrinsic evidence regarding the intent of the parties. The trial 

court’s analysis of the contract language relating to the topsoil is wellreasoned. Accordingly, we find no merit to the third assignment of error. It 

is hereby overruled.

IV. THE TRIAL COURT ERRED IN 

DETERMINING THE AMOUNT OF 

DAMAGES TO AWARD ZIMMERVIEW 

BECAUSE IT DID NOT APPLY THE 

PROPER MEASURE OF DAMAGES AND 

RELIED ON SPECULATION. 

{¶74} Dean Zimmer testified that the current state of his property was 

“nothing like it use to be.” He testified when Protégé and Great Lakes left 

the well pad site in early fall 2015, they left parts of a fence behind. Cattle 
Washington App. No. 21CA1 36

attempted to go through the fence and were hurt. There were gullies and 

boulders, unsightly vegetation, and invasive weeds. Dean Zimmer made 

Protégé aware of the landscaping issues and contacted ODNR. Dean 

Zimmer, Billy Burkhart, and Larry Lang provided the only testimony as to 

damages at the bench trial. 

{¶75} On the claims of breach of contract and conversion of the 

topsoil stockpile, the trial court rendered judgment in favor of Zimmerview 

and against Protégé in the amount of $450,000.00, plus interest at the 

statutory rate as of June 21, 2016, the date Protégé completed its operations 

on the Zimmerview property. Further, regarding Zimmerview’s claims for 

damages regarding breach of contract for failing to properly reclamate and 

return the property to Zimmerview in a similar condition to what it was prior 

to construction of the well pad, the trial court rendered judgment in favor of 

Zimmerview and against Protégé in the amount of $349,093.00, plus interest 

at the statutory rate as of June 21, 2016. Protégé asserts the trial court relied 

on speculation and conjecture to determine the amount of damages awarded 

for property damages and the topsoil claim. However, Zimmerview

responds that the trial court properly relied on the testimony of Dean 

Zimmer, Billy Burkhart, and Larry Lang. Therefore, the trial court did not 

abuse its discretion as the trial court’s findings were supported by competent 
Washington App. No. 21CA1 37

and credible evidence. For the reasons which follow, we agree with 

Zimmerview. 

STANDARD OF REVIEW FOR DAMAGES

{¶76} “ ‘The cardinal rule of the law of damages is that the injured 

party shall be fully compensated.’ ” GM Gas Exploration, Inc. v. McClain, 

4th Dist. Athens No. 1438, 1991 WL 163644, (Aug. 13, 1991), at *5, 

quoting Adcock v. Rollins Protective Services Co., 1 Ohio App.3d 160 

(1981). Trial court awards of damages are reviewed for abuse of discretion. 

Green Maple Enterprises, LLC v. Forester, 2021-Ohio-4640, -- N.E. 3d --, 

2021 WL 6276316, at ¶ 44 (7th Dist.); Griffin Contracting and Restoration 

v. McIntyre, 2018-Ohio-3121, 107 N.E.3d 22 ¶ 35 (12th Dist.), citing and

quoting Roberts v. United States Fid. & Guar. Co., 75 Ohio St.3d 630, 634, 

665 N.E.2d 664 (1996) (“[w]e will not disturb a decision of the trial court as 

to a determination of damages absent an abuse of discretion”). See also 

Hubbard Family Trust v. TNT Land Holdings, LLC, 2014-Ohio-772, 9 

N.E.3d 411, at ¶ 63 (4th Dist.)

{¶77} In general, “ ‘ “[t]he measure of damages in a conversion action 

is the value of the converted property at the time it was converted.” ’ ” 

Acme Co. v. Sanders TopSoil, 7th Dist. Mahoning No. 10MA93, 2011-Ohio6523¶ 52, quoting Allied Erecting & Dismantling Co., Inc. v. Youngstown,
Washington App. No. 21CA1 38

151 Ohio App.3d 16, 2002-Ohio-5179, 783 N.E.2d 523, at ¶ 62, quoting

Tabar v. Charlie's Towing Serv., Inc. (1994), 97 Ohio App.3d 423, 428, 646 

N.E.2d 1132. However, “[t]here is no inflexible rule as to the measure of 

damages for a wrongful conversion.” Modarelli v. Fullerton Transfer & 

Storage Limited, Inc. (May 30, 1978), 7th Dist. No. 77 CA 128. See also

Fulks v. Fulks, 95 Ohio App. 515, 121 N.E.2d 180 (1953), at paragraph two 

of the syllabus. “ ‘An award of damages must be shown with a reasonable 

degree of certainty and in some manner other than mere speculation, 

conjecture, or surmise.’ ” Acme, supra at ¶ 52, quoting Elias v. Gammel, 8th 

Dist. No. 83365, 2004-Ohio-3464, at ¶ 25. Damages are not speculative 

when they can be “computed to a fair degree of probability.” Allied 

Erecting & Dismantling Co. at ¶ 65. However, if the appellant 

“ ‘ “establishes a right to damages, that right will not be denied because the 

damages cannot be calculated with mathematical certainty.” ’ ” Id. at ¶ 64, 

783 N.E.2d 523, quoting Hollobaugh v. D & V. Trucking, 7th Dist. No. 99 

CA 303, 2001 WL 537058 (May 8, 2001), at *5, quoting Barker v. 

Sundberg, 11th Dist. No. 92-A-1756, 1993 WL 489236 (October 25, 1993).

LEGAL ANALYSIS

{¶78} Dean Zimmer testified that his property is non-productive for 

farming. The vegetation is “slim to none.” Mr. Zimmer identified 
Washington App. No. 21CA1 39

photographs of the Zimmerview property taken in 2020 which show weeds, 

mostly Marestail.10 The photographic exhibits depict extensive bare ground 

between the weeds and many boulders still needing removed.

{¶79} Mr. Zimmer testified the gullies are major problems and 

repairing these issues takes more equipment, time, and money than he has to 

invest. He identified a photograph of himself standing inside a gully which 

came up to his waist. He identified another photograph which showed the 

gully measuring four feet. Zimmer testified the gullies continue to deepen 

over time.

{¶80} Mr. Zimmer also explained that the drainage tile used in the 

layers of well pad are not working properly and water is seeping out of the 

hill even without rain. Water seepage is common in the well pad area. It 

was his understanding that Protégé would remove the rock ledges. The land 

is impassable with a tractor. One of the rock ledges is over ten feet. Some 

of the rocks were pushed to the edge of the LOD area and left behind. The 

rock ledges are mostly bare ground. 

{¶81} Zimmer testified he sought professional help. Zimmer sought 

estimates from Billy Burkhart and Larry Lang. Both men indicated the work 

10“Marestail,” also known as “horseweed,” comes from the sunflower family and can grow as tall as 6 feet. 

It is resistant to some herbicides and is a major weed problem in corn and soybean areas. See National 

Institute of Agriculture and Natural Resources, https://beef.unl.edu/beefwatch/marestail-horseweed.

Accessed December 15, 2021. 
Washington App. No. 21CA1 40

set forth in their estimates will correct the issues depicted in the 2020 

photographs of the LOD construction area. The trial court found as follows, 

beginning at Page 14:

95. Billy Burkhart testified that he was contacted by Dean 

Zimmer to provide an estimate for services to correct the 

issues with the property as well as replacing a portion of 

the topsoil stockpile that should have been left behind by 

Protégé. Mr. Burkhart’s estimate is contained in Exhibit 

P-17 and the math and the numbers used to come up with 

the numbers in the estimate is contained in Exhibit P-18. 

96. Billy Burkhart testified that the amount of topsoil for 

approximately 13.5 acres of topsoil at 6 inches deep would 

be approximately 1500 truckloads at a cost of $300.00 per 

truckload to deliver the topsoil to the property with a final 

price of $450,000. The estimate also included $25,000 for 

the equipment necessary for the distribution and 

placement of the topsoil and an additional $25,000 for the 

seeding and mulching of the 8.5 acre hillside for a total 

estimate of $500,000.

97. Larry Lang was also contacted by Dean Zimmer for 

an estimate to correct the issues. Using the same 

parameters as Billy Burkhart, Larry Lang’s estimate 

totaled $489,975.

99. Protégé did not present any evidence or witnesses to 

dispute the estimates given by both Burkhart and Larry 

Lang and further did not dispute the current damaged state 

of the land. 

{¶82} Based on the foregoing, this court cannot say the trial 

court erred in concluding at Page 22:
Washington App. No. 21CA1 41

20. Pursuant to the testimony of Billy Burkhart, the cost to 

purchase and deliver 13.5 acres (1,500 truckloads) of topsoil at 

the price of $300 per truckload, would cost $450,000. 

21. Therefore, Zimmerview has been damaged in the amount 

of $450,000 as a result of the breach of the Supplemental 

Agreement of the Parties and conversion by Protégé of the 

topsoil stockpile. 

The trial court further concluded at Page 25:

43. As to the damages for said breach of contract, both 

Billy Burkhart and Larry Lang testified as to what would 

need to be done in order to repair the 8.5 acre area. Both 

individuals testified to approximately the same manner by 

which to repair the land. Pursuant to Exhibit P-19, it will 

cost approximately $283,500.00 for the topsoil to 

complete the repair on the 8.5 acre hillside, and will cost 

$43,000.00 for seeding, mulching, and completion of 

erosion control. The total amount necessary to repair the 

hillside is $326,500.

44. Dean Zimmer also testified that he took multiple 

measures to attempt to mitigate the damages in this matter. 

Exhibit P-55 indicates that Mr. Zimmer spent $22,593.00 

on behalf of Zimmerview in his attempts to fix the issues 

with the land.

45. Total damages for failure to properly perform clean 

up reclamation effort are $349,093.00. 

{¶83} We have reviewed the record in its entirety and find no abuse of 

discretion. The trier of fact is free to believe or disbelieve each and every 

one of Zimmerview’s claims for damages. We cannot substitute our 

judgment for that of the trier of fact who had the opportunity to hear the 

witnesses and observe their demeanor. Ross v. Ross, 64 O. St. 2d 203, 414 
Washington App. No. 21CA1 42

N.E.2d 426 (1980); State v. DeHass, 10 O. St. 2d 230, 227 N.E.2d 212 

(1967). Based on the foregoing, we find no merit to Protégé’s fourth 

assignment of error. Accordingly, it is hereby overruled. 

V. THE TRIAL COURT ERRED BY FINDING 

PROTÉGÉ HAD BREACHED ITS 

AGREEMENT WITH ZIMMERVIEW BY 

FAILING TO PAY ADDITIONAL RENTS BY 

IGNORING THE PLAIN LANGUAGE OF 

THAT AGREEMENT AND RELYING ON 

EXTRINSIC EVIDENCE. 

{¶84} The third count of Zimmerview’s complaint related to 

Zimmer’s lack of access to a portion of his pasture land in the amount of 

$20,000.00 plus interest. The trial court rendered judgment in favor of 

Zimmerview and against Protégé on this claim in the amount of $20,000.00, 

plus interest at the statutory rate as of June 21, 2016. The court found 

Protégé breached the Supplemental Agreement by preventing Zimmerview’s 

access to the property due to construction lasting in excess of one year from 

the date construction started. “Additional rents” were provided for in 

Paragraph 10 of the Supplemental Agreement as follows:

ADDITIONAL CONSIDERATION: In the event that

Protégé’s operations prevent Zimmerview from obtaining 

access to the 3 (three) acres of pasture east of the access 

road for a time period exceeding 1 (one) year from the 

commencement of site construction operations then 

Zimmerview shall be entitled to an annual payment of 

$20,000 (Twenty thousand Dollars) as additional 
Washington App. No. 21CA1 43

consideration for its inability to access that portion of its 

property until access is restored. 

{¶85} Protégé contends that the trial court again ignored the plain 

language of the agreement and improperly relied on extrinsic evidence in 

finding a breach. By contrast, Zimmerview responds that both the plain 

language and evaluation of the extrinsic evidence lead to the same 

conclusion. For the reasons which follow, we agree with Zimmerview. 

{¶86} The trial transcript reflects Dean Zimmer testified three acres of 

his land was fenced off from being farmed because of the well pad; the 

pasture land could not be used until the well pad was built and fencing was 

removed. Zimmer testified that the agreement was if Protégé was there for 

more than a year and kept the Zimmers from farming or using the land for 

more than a year, Protégé would pay $20,000.00. James Vuksic assisted in 

negotiating the term. Zimmer testified there was no discussion at all of a 

“pro rata” or “monthly” basis. 

{¶87} James Vuksic testified he was familiar with Paragraph 10 of the 

Supplemental Agreement. He testified, “No one believed [Protégé] would 

be there longer than a year. And if they were, they were to pay whatever the 

fee was. That was it. * * * Dean insisted if they were they had to pay it, and 

they said no problem.” When questioned about whether the parties 
Washington App. No. 21CA1 44

discussed a pro rata distribution, Mr. Vuksic responded, “No. it was a fee. If 

you went over the year, you paid a fee.” 

{¶88} Jason Pugh testified that Protégé agreed to pay Zimmerview 

rents/compensation if they were unable to restore Zimmer’s access to a 

certain portion of the site within a specified date. Construction commenced 

on May 4, 2015, and the fence was removed according to Hydrogreen’s 

daily report on June 21, 2016, two months past one year. However, Pugh 

testified that the prorated amount was what was agreed to in Paragraph 10.

{¶89} In the Findings of Fact and Conclusions of Law, at Page 6, the 

trial court found:

37. Paragraph 10 of Exhibit J-2 indicates that if Protégé’s 

operations prevent Zimmerview from obtaining access to 

lands for one year from the commencement of site 

construction that Zimmerview is entitled to a $20,000 

annual cash payment as additional consideration for 

Zimmerview’s inability to access portions of its property. 

{¶90} The trial court concluded at Page 22:

23. Both parties acknowledge that Zimmerview was 

prevented access to the land for a period of greater than 

one year. Therefore, there is no dispute that Protégé is in 

breach of Paragraph 1- of the Supplemental Agreement of 

the Parties.

25. There exists no pro rata or monthly language contained 

in Paragraph 10 of Exhibit J-2. It would have been very 

easy for Protégé to have added such language to that 

provision if that was their intent.
Washington App. No. 21CA1 45

28. Since there is no contract language contained in 

Paragraph 10 that supports Protégé’s position of pro rata 

distribution of the $20,000.00 provision, Zimmerview is 

entitled to payment of $20,000.00 pursuant to Paragraph 

10 of the Supplemental Agreement of the Parties. Thus, 

the date construction started is inconsequential since 

Paragraph 10 does not call for pro rata or monthly 

distribution for periods extending over one year.

29. Therefore, Zimmerview has proven Protégé breached 

Paragraph 10 of the Supplemental Agreement of the 

Parties by a preponderance of the evidence and 

Zimmerview is entitled to judgment on Paragraph 10 in 

the amount of $20,000.00. 

{¶91} The trial court allowed a great deal of extrinsic 

evidence which supported Zimmerview’s claims. The trial court referenced 

much of this evidence in the Findings of Fact and Conclusions of Law. 

However, as indicated above, the trial court’s decision rested on the court’s 

legal interpretation of Paragraph 10. As indicated above, the trial court’s 

interpretation of contract language is subject to de novo review. 

{¶92} In this case, we find the trial court properly construed the 

language contained in Paragraph 10. Paragraph 10 references an “annual 

payment,” and does not contain pro rata language. The trial court noted the 

absence of pro rata language, which could have been easily included. 

Black’s Law Dictionary, Abridged Sixth Edition, defines “annual” as, “[o]f 

or pertaining to year; returning every year; coming or happening yearly.” 

While the trial court referenced the testimony surrounding the inclusion of 
Washington App. No. 21CA1 46

Paragraph 10, the trial court’s legal determination is easily supported by the 

clear and unambiguous language of Paragraph 10. Protégé’s fifth 

assignment of error is without merit and it hereby overruled.

CONCLUSION

Having found no merit to any of Appellant’s assignments of error, the 

judgment of the trial court is affirmed. 

JUDGMENT AFFIRMED.
Washington App. No. 21CA1 47

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and that costs be 

assessed to Appellant.

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 the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure.

Hess, J. and Wilkin, J. concur in Judgment and Opinion.

For the Court,

______________________________

Jason P. Smith

Presiding Judge

NOTICE TO COUNSEL

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.