[Cite as Pfalzgraf v. Miley , 2018-Ohio-4392.]



## IN THE COURT OF APPEALS OF OHIO

SEVENTH APPELLATE DISTRICT MONROE COUNTY

GEORGE AND MARJORIE PFALZGRAF,
Plaintiffs-Appellees,

v. JEFF MILEY, DBA MILEY GAS COMPANY, ET AL.,
Defendants-Appellants.

OPINION AND JUDGMENT ENTRY Case Nos. 16 MO 0005, 16 MO 0006.

Motion to Certify a Conflict

BEFORE: Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.

JUDGMENT: Denied

Atty. Ethan Vessels , Fields, Dehmlow & Vessels, 309 Second Street, Marietta, Ohio 45750, for Plaintiffs-Appellees, and Atty. William J. Taylor, Atty. Scott D. Eickelberger, Atty. David J. Tarbert, Atty. Ryan H. Linn, Kincaid, Taylor & Geyer, 50 North Fourth Street, P.O. Box 1030, Zanesville, Ohio 43702, and Atty. J. Kevin West, Atty. Melanie Norris, Atty. Lyle Brown, Steptoe & Johnson, PLLC, 41 South High Street, Suite 2200, Columbus, Ohio 43215, for Defendants-Appellants. Dated: October 29, 2018– 2 –

Case Nos. 16 MO 0005, 16 MO 0006 PER CURIAM.
{¶1} Plaintiff-appellee, George Pfalzgraf, has filed two motions both asking this court to certify a conflict to the Ohio Supreme Court. The first motion alleges a conflict between this Court’s judgment in Pfalzgraf v. Miley , 7th Dist. No. 16 MO 0005, 2018- Ohio-2828, and the Third District’s judgment in Mulcahy v. Runyon , 3d Dist. No. 8-81- 18, 1983 WL 7244 (Apr. 20, 1983). The second motion alleges a conflict between this Court’s judgment in Pfalzgraf , supra, and Siley v. Remmele , 4th Dist. No. 86 CA 6, 1987 WL 7585 (Mar. 6, 1987). {¶2} Appellee asks that we certify the two following questions:

In an action in which a lessor sues for a declaration that that [sic.] an oil and gas lease has terminated of [sic.] for lack of production in paying quantities, who bears the burden of proof, the lessor or the lessee?

In an action to declare that an oil and gas lease has terminated under its own terms, can the payment of a royalty be considered as any evidence that the well in question produced ‘in paying quantities’?

{¶3} App.R. 25 governs motions to certify conflicts. Pursuant to App.R. 25(A), a motion to certify a conflict

shall be made in writing no later than ten days after the clerk has both mailed to the parties the judgment or order of the court that creates a conflict with a judgment or order of another court of appeals and made note on the docket of the mailing, as required by App.R. 30(A).

{¶4} We entered our judgment in this case on July 12, 2018. The clerk mailed copies of the judgment that same day. The clerk also made a note of mailing the judgment that day. {¶5} Thus, appellee had ten days after July 12, 2018 to file his motions to certify a conflict. Because the tenth day (July 22, 2018) was a Sunday, appellee had– 3 –

Case Nos. 16 MO 0005, 16 MO 0006 until July 23, 2018 to file his motions to certify. Appellee did not file his motions to certify until September 11, 2018, well past the ten-day time limit. Thus, the motions are clearly untimely. {¶6} Because appellee’s motions are untimely, the motions to certify a conflict are hereby denied.

JUDGE GENE DONOFRIO, Concurs
JUDGE CHERYL L. WAITE, Concurs
JEDGE CAROL ANN ROBB, Concurs

NOTICE TO COUNSEL
This document constitutes a final judgment entry.