IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

DAVID E. CAMERON, et al., : 

 : Case No. 2:12-CV-00168 

 Plaintiffs, : 

 v. : JUDGE ALGENON L. MARBLEY 

 : 

HESS CORPORATION, et al., : Magistrate Judge Deavers 

 : 

Defendants. : 

OPINION & ORDER 

 This matter is before the Court on the Motion of Plaintiffs David Cameron, Melissa 

Griffith, Stephen J. Griffith, and John and Jane Doe (collectively “Plaintiffs”) for Partial 

Summary Judgment, (Doc. 37), the Cross-Motion of Defendants Hess Corp., Hess Ohio 

Developments, LLC, and Hess Ohio Resources, LLC (collectively “Hess”) for Partial Summary 

Judgment, (Doc. 42), and the Motion of Defendant Mason Dixon Energy, Inc. (“Mason Dixon”) 

for Summary Judgment, (Doc. 51). For the reasons set forth herein, Plaintiffs’ Motion is 

GRANTED in part and DENIED in part, Hess’s Motion is DENIED, and Mason Dixon’s 

Motion is GRANTED in part and DENIED in part. 

I. BACKGROUND 

A. Factual History 

 This action arises out of oil and gas leases purportedly executed between Defendant 

Mason Dixon and Plaintiffs Stephen and Melissa Griffith (the “Griffiths”), and between Mason 

Dixon and Plaintiff David Cameron (“Cameron”). In the spring of 2007, Mason Dixon 

approached the Griffiths about an oil and gas lease for their 228.6 acre dairy farm in Jefferson 

County, Ohio. On June 14, 2007, the Griffiths purportedly executed a written “Oil and Gas 

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Lease” agreement with Mason Dixon (the “Griffiths Lease”), (Doc. 37, Ex. A). Melissa Griffith, 

however, did not sign the Griffiths Lease. Melissa Griffith Dep. at 36. Rather, Plaintiffs allege 

that Mason Dixon’s representative first directed Stephen to sign on his wife’s behalf (which he 

did) and then notarized the resulting document. Stephen Griffith Dep. at 30-32. 

Approximately one year later, Mason Dixon approached Cameron about an oil and gas 

lease for his 166.36 hay and cattle farm, which adjoins the Griffiths’ dairy farm in Jefferson 

County. On June 27, 2008, Cameron purportedly executed a written “Oil and Gas Lease” 

agreement with Mason Dixon (the “Cameron Lease”), (Doc. 37, Ex. B). Plaintiffs assert that the 

Cameron lease was improperly notarized, as the notary was not present at the time the Cameroun 

Lease was executed. Cameron Dep. at 27, 30. 

The terms of the Griffith and Cameron Leases, which contain largely identical language, 

granted the Lessee1

 “exclusive right to enter upon” certain lands in Mt. Pleasant Township, 

Jefferson County, Ohio in order “to conduct geological and geophysical surveys and 

explorations, and to operate for, produce, and save oil and gas... and to inject gas, air, water or 

other fluids into the subsurface strata of said lands for the recovery and production of oil and gas, 

together with the right to drill wells.” Griffiths Lease at ¶ 3; Cameron Lease at ¶ 3. 

1. Assignment of Griffiths and Cameron Leases 

Both the Griffiths and Cameron Leases allow for the rights of either party to be assigned 

in whole or in part, provided that no such change, “however accomplished, shall operate to 

enlarge the obligations or diminish the rights of Lessee.” Griffith Lease at ¶ 11, Cameron Lease 

at ¶ 11. Pursuant to this clause, on December 15, 2008, Mason Dixon filed two “Assignment of 

Oil and Gas Leases” with the Jefferson County, Ohio, Recorder: one assigning the property 

                                                            

1 “Lessee,” as referenced herein, refers to either Mason Dixon, Marquette, or Hess, depending on the specific time 

period referenced. 

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conveyed under the Griffith Lease, identified at OR Volume 867, pages 838-839; and another 

assigning the property conveyed under the Cameron Lease, identified at OR Volume 867, pages 

852-853. See Bowers Aff., Doc. 51-1 (attaching relevant assignments). Through these 

assignments, Mason Dixon purportedly conveyed all of its “right, title and interest, in and to” the 

Griffith and Cameron Leases to Marquette Exploration, LLC (“Marquette”), “subject to the 

terms, provisions, covenants, and royalties” set forth in the original leases. The Griffiths and 

Cameron Leases were subsequently assigned to Hess Ohio Resources, LLC. 

2. Griffiths Lease Term 

The Griffiths Lease contains a “habendum clause,” which provides: 

It is agreed that this lease shall remain in force for a term of five (5) year(s) from 

[June 14, 2007], and as long thereafter as oil or gas . . . or either of them, is 

produced from said land by the Lessee, its successors and assigns. Lessee has the 

option to extend this lease for an additional term of five (5) years(s) from the 

expiration of the primary term of this lease, and as long thereafter as oil or gas ... 

or either of them, is produced from said land by the Lessee, its successors and 

assigns, said extension to be under the same term of this lease. Lessee, it 

successors or assigns, may exercise this option to extend if on or before the 

expiration date of the primary term of this lease, Lessee pays or tenders to the 

Lessor or to the Lessor’s credit, an amount per mineral acre equal to two (2) times 

the amount per net mineral acre paid to Lessor upon the execution of this lease. 

Griffith Lease ¶ 2. The parties do not dispute that, pursuant to the habendum clause, the primary 

term of the Griffiths Lease is five years. Based on the above, the primary term was scheduled to 

expire in June 2012. 

In addition, the Griffith Lease contains a “delay rental” provision, which provides that, 

If operations for drilling are not commenced on the leased premises, or on acreage 

pooled therewith, on or before twelve (12) months from [June 14, 2007], this 

lease shall then terminate as to both parties unless Lessee, on or before the 

expiration of said period, shall pay or tender to Lessor the sum of Five and no/100 

($5.00) Dollars per net mineral acre of the associated lease, hereinafter called the 

“delay rental,” which shall extend for twelve (12) months the time within which 

drilling operations may be commenced. Thereafter, annually, in like manner and 

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upon like payments or tenders, the commencement of drilling operations may be 

further deferred for periods of twelve (12) months each during the primary term. 

Griffith Lease ¶ 4. 

It is undisputed that, to date, no drilling activity of any kind has taken place on the 

property covered by the Griffiths Lease, and the Griffiths have received no royalties of any kind 

under the terms of the Griffiths Lease. 

After execution of the Griffith Lease, the Lessee made four annual Delay Rental 

payments, in the amount of $1,143.00 each, in 2008, 2009, 2010, and 2011. Hess asserts that the 

Lessee thereby satisfied its contractual obligations for the entirety of the primary term of the 

Griffith Lease, or until June 14, 2012. S. Griffith Depo. at 46-52; M. Griffith Depo. at 45-53, Exs. 

C, D, E, F. In addition, in May 2012, the Lessee tendered to the Griffiths an extension payment 

of $13,716, intended to extend the lease term for an additional five years (i.e., through June 

2017), pursuant to paragraph 2 of the Griffith Lease. Countercl., Doc. 32, ¶ 53; Pls.’ Answer ¶ 

53; Ivy Phillips Aff. at ¶¶ 5-7. For the purposes of Plaintiffs’ motion for summary judgment, the 

Griffiths do not dispute that Hess (or its processor in interest, Marquette) attempted all payments 

called for under the Griffith Lease. (Doc. 37-1 at 3.) Hess argues that, because the Lessee 

tendered the payments above, the Griffiths Lease remains in effect, and has not terminated 

pursuant to the “delay rental” provision. 

Plaintiffs argue that the “delay rental” provision gave the Lessee the option to make an 

annual “delayed rental” payment to the Griffiths, but only “during the primary term.” Plaintiff 

therefore argues that, upon the expiration of the primary term on June 13, 2012, the Griffiths 

Lease terminated pursuant to the “delay rental” provision. Notably, the Griffiths have presented 

evidence that they did not cash the delay payments tendered in 2010 and 2011, nor the extension 

payment tendered in 2012. Although Hess does not dispute that the Griffiths did not cash the 

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2011 delay rental check or the 2012 extension payment check, Hess does assert that the Griffiths 

cashed the check for the 2010 delay rental payment. See S. Griffith Depo. at 46-52; M. Griffith 

Depo. at 45; Depo. Exs. C, D, E.; S. Griffith Depo. at 52-53; M. Griffith Depo. at 45, 59, Ex. F. 

3. Cameron Lease Term 

The Cameron Lease also contains a “habendum clause,” which provides: 

It is agreed that this lease shall remain in force for a term of five (5) year(s) from 

[June 27, 2008], and as long thereafter as oil or gas . . . or either of them, is 

produced from said land by the Lessee, its successors and assigns. Lessee has the 

option to extend this lease for an additional term of five (5) years(s) [sic] from the 

expiration of the primary term of this lease, and as long thereafter as oil or gas ... 

or either of them is produced from said land by the Less, its successors and 

assigns, said extension to be under the same terms and conditions as contained in 

this lease. Lessee, its successors or assigns, may exercise this option to extend if 

on or before the expiration date of the primary term of this lease, Lessee pays or 

tenders to the Lessor or to the Lessor’s credit, an amount per net mineral acre 

covered under that certain un-recorded Bonus and Rental Agreement between 

Lessor and Less of even date hereof. 

Cameron Lease ¶ 2. Under the habendum clause of the Cameron Lease, the Cameron Lease was 

scheduled to expire on June 27, 2013. 

Contemporaneously with the Cameron Lease, Cameron signed an Order of Payment and 

Bonus and Rental Agreement (“Order of Payment”), (Doc. 37-7), which provides that, “[i]f any 

of the following [Order of Payment] provisions conflict with or are inconsistent with any of the 

printed provision or terms of the [Cameron] Lease, the following provisions shall control.” The 

Cameron Order of Payment contains a “delay rental” provision that is similar, but not identical, 

to that contained in the Griffiths Lease: 

If operations for drilling are not commenced on the leased premises, or on acreage 

pooled therewith, on or before twelve (12) months from [June 27, 2008], this 

lease shall then terminate as to both parties unless Lessee, on or before the 

expiration of said period, shall pay or tender to Lessor the sum of One Hundred 

and no/100 ($100.00) Dollars per net mineral acre of the associated lease, 

hereinafter called the “delay rental,” which shall extend for twelve (12) months 

the time within which drilling operations may be commenced. . . . Lessee has the 

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option to extend this lease for an additional term of five (5) years(s) from the 

expiration of the primary term of this lease, and as long thereafter as oil and gas. . 

. is produced from said land by the Lessee, its successors and assigns, said 

extension to be under the same terms and conditions as contained in this lease. 

Lessee, its successors or assigns, may exercise this option to extend if on or 

before the expiration date of the primary term of this lease, Lessee pays or tenders 

to the Lessor or to the Lessor’s credit, the amount of Five Hundred and no/100 

($500.00) Dollars per net mineral acre. Thereafter, if operations for drilling are 

not commended on the leased premises, or on acreage pooled therewith, on or 

before twelve (12) months from this date, the lease shall then terminate as to both 

parties unless Lessee, on or before the expiration of said period, shall pay or 

tender to Lessor the sum of One Hundred and no/100 ($100.00) Dollars per net 

mineral acre of the associated lease, hereinafter called the “delay rental,” which 

shall extend for twelve (12) months the time within which drilling operations may 

be commenced. 

Order of Payment. 

It is undisputed that, to date, no drilling activity of any kind has taken place on either the 

Griffith or Cameron properties, and Plaintiffs have received no royalties of any kind under the 

terms of their respective leases. 

Upon signing the Cameron Lease, Cameron received and accepted a bonus payment of 

$16,363.00 (equivalent to one year’s delay rental payment). Cameron Depo. at 50-55. In 

addition, after the initial delay rental payment, the Lessee made four additional payments to 

Cameron in the amount of $16,363.00 each, all of which were labeled “Delay Rental,” and 

accompanied by a letter specifically that referenced the payments as an “Annual Rental 

payment” and noted the particular annual period to which such payment was intended to apply.2

 

It is undisputed that Hess has not tendered the $500.00 per net mineral acre needed to extend the 

Cameron Lease for an additional five (5) years. For the purposes of Plaintiffs’ motion for 

summary judgment, Cameron does not dispute that Hess (or its processor in interest, Marquette) 

                                                            

2 Hess sent the forth payment to Cameron after this lawsuit was filed and after Cameron’s deposition was taken. 

Cameron accepted and cashed the fourth payment, marking it “signing under protest.” 

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attempted all payments called for under the Cameron Lease and Order of Payment. (Doc. 37-1 at 

3.) 

Hess argues that, pursuant to the habendum clause of the Cameron Lease, the primary 

lease term is five years. Hess further contends that, based on the Lessee’s tender of five delay 

rental payments, Hess has satisfied its obligations pursuant to the Cameron Lease and Order of 

Payment and that, therefore, these agreements have not terminated pursuant to “delay rental” 

provision of the Order of Payment. 

Cameron, in contrast, contends that the Order of Payment’s “delay rental” provision 

provides only for the opportunity to delay drilling for two (2) twelve (12) month periods (i.e., to 

make only two initial annual delay rental payments), and thereafter terminates the lease unless 

the Lessee makes the requisite payment to extend the lease for an additional five year term. 

Plaintiffs therefore argue that, because the Order of Payment supersedes conflicting provisions in 

the Cameron Lease, the “delay rental” provision modifies the Cameron Lease to create a twoyear primary term, ending on June 26, 2010. Because Hess made no extension payment prior to 

that date, Cameron asserts that the Cameron Lease and the Order of Payment in fact terminated 

on June 26, 2010. Hess disputes Plaintiffs’ construction of the Order of Payment, and asserts 

that the five-year primary term referenced in the Cameron Lease governs here. Hess further 

argues that the delay rental payments tendered by the Lessee preserved Hess’s drilling rights for 

the entirety of the five-year term of the Cameron Lease, i.e. through June 27, 2013. The record 

does not reflect whether Hess made any extension payment prior to the expiration of the 

purported five-year term. 

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B. Procedural History 

 On January 12, 2012, Plaintiffs commenced this action in the Jefferson County Court of 

Common Pleas as a State class action seeking declaratory judgment relative to the Griffiths 

Lease and the Cameron Lease. Pursuant to 28 U.S.C. §§1441, 1446 and 1453, Hess removed the 

matter to this Court on February 23, 2012. 

Plaintiffs’ First Amended Complaint, filed on November 28, 2012, asserts the following 

claims against Mason Dixon and Hess: (I) Declaratory Judgment – Oil Pooling Rights; (II) 

Unconscionability; (III) Unjust Enrichment; (IV) Declaratory Judgment – Improper Notary 

Provision; (V) Declaratory Judgment – Missing Signatory; and (VI) Declaratory Judgment – 

Order of Payment Provision. (Doc. 30.) On December 12, 2012, Hess filed a joint Answer and 

Counterclaim to the First Amended Complaint, asserting the following causes of action: (I) 

Declaratory Judgment – Cameron Lease; (II) Declaratory Judgment – Griffiths Lease; (III) 

Breach of Contract – Cameron Lease; (IV) Breach of Contract – Griffiths Lease; (V) 

Anticipatory Breach of Contract – Cameron; (VI) Anticipatory Breach of Contract – Griffiths; 

(VII) Unjust Enrichment – Cameron; and (VIII) Unjust Enrichment – Griffiths. (Doc. 32.) 

In their January 11, 2013 Motion for Partial Summary Judgment, Plaintiffs seek 

adjudication of Count VI of the First Amended Complaint, as well as Counts I and II of Hess’s 

Counterclaim. (Doc 37-1 at 1.) For the purposes of their Motion for Partial Summary Judgment 

only, Plaintiffs assume the validity of both the Cameron and Griffiths Leases. (Doc. 37-1 at 9.) 

In its Cross-Motion for Summary Judgment, filed on February 22, 2013, Hess seeks summary 

judgment in their favor on the same claims. (Doc. 42 at 1.) In addition, March 18, 2013, Mason 

Dixon moved for summary judgment on all Plaintiffs’ claims against them. (Doc. 51 at 1-2.) 

These matters have fully briefed and are, therefore, ripe for review. 

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II. STANDARD OF REVIEW 

 Summary judgment is proper if there is no genuine issue of material fact and the movant 

is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A fact is material if proof of 

that fact would establish one of the elements of a claim and would affect the application of 

governing law to the rights of the parties. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 

1984) (citing Johnson v. Soulis, Wyo., 542 P.2d 867, 872 (1975)). 

 A movant for summary judgment meets its initial burden “by ‘showing’ – that is, 

pointing out to the district court – that there is an absence of evidence to support the nonmoving 

party's case.” Dixon v. Anderson, 928 F.2d 212, 216 n. 5 (6th Cir.1991) (citing Celotex Corp. v. 

Catrett, 477 U.S. 317, 324-25 (1986)). At that point, the non-movant must set forth specific facts 

showing that there is a genuine issue for trial. Id. (quoting Fed.R.Civ.P. 56(e); Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). It is not, however, the role of the trial court to 

“resolve factual disputes by weighing conflicting evidence because it is the jury's role to assess 

the probative value of the evidence.” Kraus v. Sobel Corrugated Containers, Inc., 915 F.2d 227, 

230 (6th Cir. 1990) (citing Stone v. William Beaumont Hosp., 782 F.2d 609, 615 n.5 (6th Cir. 

1986); Kennett-Murray Corp. v. Bone, 622 F.2d 887, 892 (5th Cir. 1980)). All evidence and 

reasonable inferences must be viewed in the light most favorable to the party opposing the 

motion. Pucci, 628 F.3d at 759 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 

U.S. 574, 587 (1986)). 

III. ANALYSIS 

A. Cross-Motions of Plaintiffs and Hess for Partial Summary Judgment 

 Plaintiffs and Defendant Hess have made cross-motions for summary judgment on Count 

VI of Plaintiffs’ First Amended Complaint and Counts I and II of Hess’s Counterclaim. Count 

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VI of Plaintiffs’ First Amended Complaint seeks a declaration of rights under the Cameron Order 

of Payment. Counts I and II of Hess’ Counterclaim seek a declaratory judgment relative to the 

rights and obligations between the parties for the Cameron Lease and Griffiths Lease, 

respectively. 

Oil and gas leases are contracts subject to the well-settled rules of contract construction 

and interpretation. See, e.g. Burner-Morgan-Stephens Co. v. Wilson, 586 N.E.2d 1062 (Ohio 

1992); Phillips Exploration, Inc. v. Reitz, No. 2:11-cv-920, 2012 WL 6594915 (S.D. Ohio Dec. 

18, 2012). Under Ohio law, interpretation of a written contract is a matter of law for initial 

determination by the Court. Construction Interior Sys., Inc. v. Marriott Family Rests., Inc., 984 

F.2d 749, 754 (6th Cir. 1993) (applying Ohio law); see also Long Beach Ass’n, Inc. v. Jones, 697 

N.E.2d 208, 209 (Ohio 1998). Moreover, contract interpretation is only turned over to the factfinder when the relevant contract language is ambiguous. Potti v. Duramed Pharms., Inc., 938 

F.2d 641, 647 (6th Cir. 1991) (applying Ohio law) (citing Bahamas Agric. Indus., Ltd. v. Riley 

Stoker Corp., 526 F.2d 1174, 1179 (6th Cir. 1975)). The Court decides whether a contract is 

ambiguous as a matter of law. Id. (citing D.L. Baker & Co. v. Acosta, 720 F.Supp. 615, 618 

(N.D. Ohio 1989)).

2. Declaratory Judgment – Griffiths Lease (Count II of the Counterclaim) 

With respect to the Griffiths, the question before this Court on summary judgment is 

whether the Griffiths Lease remains valid and enforceable, or whether it has terminated on its 

own terms. At the behest of the parties, for the purposes of determining the respective rights and 

obligations of the parties under the Griffiths Lease, this Court assumes – without deciding – that 

there was no defect in the Griffiths Lease, and that Hess has made all delay rental and extension 

payments required under its terms. 

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As described above, Plaintiffs argue that the “delay rental” provision of the Griffiths 

Lease gave the Lessee the option to make an annual “delayed rental” payment to the Griffiths, 

but only “during the primary term.” Griffith Lease ¶ 4 (“Thereafter, annually, in like manner and 

upon like [delay rental] payments or tenders, the commencement of drilling operations may be 

further deferred for periods of twelve (12) months each during the primary term.”) (emphasis 

added). As such, Plaintiff argues that – even though Hess made the requisite payment to extend 

the lease term for an additional five years – the Griffifths Lease does not authorize Hess to use 

annual delay payments to postpone drilling during that secondary term. Plaintiff therefore argues 

that the Griffiths Lease automatically terminated on June 13, 2012, pursuant to the “delay rental” 

provision. 

Hess counters that Plaintiffs’ interpretation of the “delay rental” provision would render 

the habendum clause’s five-year-extension language meaningless. Accordingly, Hess urges this 

court to interpret the phrase “primary term” in the “delay rental” provision to mean “the initial 

five year primary term and [the lease term] as extended.” (Def.’s Cross-Motion, Doc. 42 at 11.) 

Under that construction of the Griffiths Lease, the Lessee’s obligation to commence drilling may 

be delayed by delay rental payments for a full ten years. Thus, Hess argues, because the Lessee 

has tendered all requisite delay rental and extension payments pursuant to its obligations under 

the Griffiths Lease, the Griffiths Lease remains valid and enforceable and has not terminated. 

The plain language of the Griffiths Lease does not support Hess’s position that the phrase 

“primary term” refers to both the initial five year term and any subsequent extension. Indeed, in 

authorizing the extension of the lease, the habendum clause grants the Lessee “the option to 

extend this lease for an additional term of five (5) years(s) from the expiration of the primary 

term of this lease, and as long thereafter as oil or gas ... or either of them, is produced from said 

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land ....” Griffith Lease ¶ 2 (emphasis added). Thus, the contractual language defines the 

“additional term” relative to, and as distinct from, the “primary term.” Indeed, pursuant to this 

provision, the “primary term” must actually expire before the “additional term” can commence. 

See Black’s Law Dictionary (9th ed. 2009) (defining “expiration” to mean “[a] coming to an end; 

esp., a formal termination on a closing date”). 

Ohio courts have regularly encountered habendum clauses in oil and gas leases that 

provide for primary and secondary terms, and recognized that terms of the contract may impose 

distinct obligations for each. See, e.g., Am. Energy Sev. V. Lekan, 598 N.E.2d 1315, 1319-20 

(Ohio Ct. App. 1992) (interpreting a habendum clause to mean that “[i]f after the expiration of 

the primary term the conditions of the secondary term are not continuing to be met, the lease 

terminates by the express terms of the contract herein and by operation of law and revests the 

leased estate in the lessor”) (emphasis added); Moore v. Adams, No. 2007-AP-90066, 2008 WL 

4907590, ¶¶ 26-28 (Ohio Ct. App. Nov. 17, 2008) (noting that an oil and gas habendum clause 

has two parts – a primary term and a secondary term – that impose distinct conditions). As 

such, where the language of a habendum clause creates two distinct terms – here, a “primary 

term” and an “additional term” created by an extension payment – this Court cannot infer that 

conditions that expressly apply to the “primary term” also automatically apply to the “additional 

term.” Had the parties intended this result, they could have so contracted. 

By way of example, the oil and gas lease at issue in Phillips Exploration, Inc. v. Reitz, 

No. 2:11-cv-920, 2012 WL 6594915, (S.D. Ohio Dec. 18, 2012), included the following 

language:

EXTENSION. This lease may, at Lessee's option, be extended as to all or part of 

the lands covered hereby for an additional primary term of FIVE (5) years 

commencing on the date that this lease would have expired but for the extension. 

Lessee may exercise its option by paying or tendering to Lessor an extension 

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payment of $40.00 per net acre for the land then covered by the extended lease.... 

If Lessee exercises this option, the primary term of this lease shall be considered 

to be continuous, commencing on the date of the lease and continuing from that 

date to the end of the extended primary term.... 

Id. at *1 (emphasis added). Although Phillips Exploration did not consider the question of 

whether delay rental payments were applicable to the extension period, the extension language at 

issue there demonstrates the potential for parties to choose to define the phrase “primary term” to 

include any subsequent extensions. Here, in contrast, the express terms of the Griffiths Lease 

contains no support for interpreting the phrase “primary term,” as used in the “delay rental” 

provision, to include the “additional term” created by an extension payment. See Kelly v. Med. 

Life Ins. Co., 509 N.E.2d 411, 411 (Ohio 1987) (“The intent of the parties to a contract is 

presumed to reside in the language they chose to employ in the agreement.”). 

Hess also argues that the above interpretation of the “delay rental” provision renders the 

“additional term” language of the habendum clause meaningless. This argument is similarly 

unpersuasive. Ohio law mandates that “a contract must be construed in its entirety and in a 

manner that does not leave any phrase meaningless or surplusage.” Phillips Exploration, 2012 

WL 6594915 at *4 (quoting Local Mktg. Corp. v. Prudential Ins. Co., 824 N.E.2d 122, 125 

(Ohio Ct.App. 2004). This canon of construction, however, does not preclude a reading of the 

Griffiths Lease in which the “delay rental” provision applies only to the “primary term” of the 

lease. Indeed, the habendum clause provides for an extension “for an additional term of five (5) 

years(s) from the expiration of the primary term of this lease, and as long thereafter as oil or gas 

... or either of them, is produced from said land ....” Griffiths Lease ¶ 2 (emphasis added). 

Thus, this language can be read to authorize an extension of the lease term only where the Lessee 

actually commences drilling on the lease premised. Harmonizing this provision with the “delay 

rental” provision – which, as discussed above, does not permit a delay rental payment to forestall 

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the termination of the lease during the “additional term” – the Lessee would have at most twelve 

(12) months from the advent of the “additional term” in which to commence drilling. Because, 

here, the first year of the “additional term” has come and gone and drilling has not commenced, 

the Griffiths Lease has, by its terms, “terminate[d] as to both parties.” Griffiths Lease ¶ 4.3

 

Hess also argues that, in order to terminate the lease, the Griffiths were obligated to 

notify the Lessee in writing pursuant to either paragraph 10 or 17 of the Griffiths Lease. 

Paragraph 10 provides: 

Failure to pay or error in paying any rental or other payments due hereunder shall 

not constitute a ground for forfeiture of this lease and shall not affect Lessee’s 

obligation to make such payment, but Lessee shall not be considered in default on 

account thereof until Lessor has first given Lessee written notice of the 

nonpayment and Lessee shall have failed for a period of thirty (30) days after 

receipt of such notice to make payment. 

Griffiths Lease, ¶ 10. For the purposes of these motions for summary judgment, however, 

Plaintiffs do not assert that the Lessee failed to make any payments required under the Griffiths 

Lease. Accordingly, the notice requirement of paragraph 10 is not applicable here. Similarly, 

paragraph 17 of the Griffiths Lease requires that the Lessor given written notice “[i]n the event 

Lessor considers that the Lessee has not complied with its express or implied obligations” under 

the lease. But, again, Plaintiffs do not contend that the Griffiths Lease is terminated due to 

breach, but rather that the lease automatically “terminate[d] as to both parties” by virtue of the 

Lessee’s failure to commence drilling. Accordingly, the notice provision at paragraph 17 is not 

                                                            

3

 Notably, in so interpreting the Griffiths Lease, the Court does not rely on Plaintiffs’ arguments that a contrary 

construction is prohibited by Ohio public policy. Plaintiffs argue that length that Ohio’s public policy imports into 

oil and gas contracts an implied duty to reasonably land, which prevents Hess from holding the Griffiths Lease for 

ten years “without EVER having the obligation to drill a single hole – so long as it timely tenders all delayed rental 

payments called for under the lease.” (Pl.’s Brief, Doc. 37-1 at 13.) As this Court has previously explained, however, 

courts have found certain leases to be void and unenforceable as violative of Ohio public policy supporting 

production of oil and gas in cases where they authorize “perpetual extensions that would present a ‘no term’ lease.” 

Phillips Exploration, 2012 WL 6594915 at *5. Here, in contrast, even if the Griffiths Lease permitted delay 

payments for a full ten years, it would not be a “perpetual lease” of the type singled out by Ohio case law. See id. at 

*5-6. 

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applicable to the matter sub judice. As such, Plaintiffs’ failure to give notice pursuant to 

provisions 10 and 17 does not resurrect the Griffiths Lease. 

 Based on the above, the Court finds that the Griffiths lease is unambiguous as a matter of 

law, and automatically terminated by its terms as of June 2013. Therefore, Plaintiff’s motion for 

summary judgment is GRANTED and Defendant’s cross-motion for summary judgment is 

DENIED as to Count II of Hess’s counter claim. 

2. Declaratory Judgment – Cameron Lease and Order of Payment 

Because Count VI of the First Amended Complaint and Count I of the Counterclaim both 

seek declaratory judgment as to the parties’ rights and obligations under the Cameron Lease and 

Order of Payment, the Court will consider those causes of action together. With respect to 

Cameron, the question before this Court is on summary judgment is whether – in light of the 

corresponding Order of Payment – the Cameron Lease remains valid and enforceable, or whether 

it has terminated on its own terms. At the behest of the parties, in determining the respective 

rights and obligations of the parties under the Cameron Lease and Order of Payment, we assume 

– without deciding – that there was no defect in those agreements, and that Hess has made all 

delay rental and extension payments required under their respective terms. 

Like the Griffiths Lease, the Cameron Lease contains a habendum clause that provides 

for a five year “primary term,” and an option for the Lessee to extend the lease “for an additional 

term of five (5) years(s) [sic]” by tendering an extension payment. Cameron Lease ¶ 2. Hess 

argues that this clause covers the duration of the primary term, and that therefore the “primary 

term” Cameron Lease was scheduled to expire on June 27, 2013. Cameron, however, argues that 

the “delay rental” provision in the Order of Payment supersedes the five-year primary term of the 

Cameron Lease, and instead imposes a two-year primary term, and thereafter requires a five year 

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extension payment to avert termination of the lease. See Order of Payment (providing that “[i]f 

any of the following [Order of Payment] provisions conflict with or are inconsistent with any of 

the printed provision or terms of the [Cameron] Lease, the following provisions shall control”). 

The “delay rental” provision of the Order of Payment provides that: 

If operations for drilling are not commenced on the leased premises... on or 

before twelve (12) months from [June 27, 2008], this lease shall then terminate as 

to both parties unless Lessee, on or before the expiration of said period, shall pay 

or tender to Lessor ... the “delay rental,” which shall extend for twelve (12) 

months the time within which drilling operations may be commenced. 

 

The Order of Payment further provides that the “Lessee has the option to extend this lease for an 

additional term of five (5) years(s) from the expiration of the primary term of this lease,” and 

that, thereafter: 

[I]f operations for drilling are not commended on the leased premises, or on 

acreage pooled therewith, on or before twelve (12) months from [the advent of the 

“additional term”], the lease shall then terminate as to both parties unless Lessee, 

on or before the expiration of said period, shall pay or tender to Lessor ... the 

“delay rental,” which shall extend for twelve (12) months the time within which 

drilling operations may be commenced. 

 Conspicuously absent from the Order of Payment is language equivalent to that 

found in the Griffiths Lease, which authorizes annual “delay rental” payments throughout 

the applicable lease term. Contrast Griffiths Lease at ¶ 4 (“Thereafter, annually, in like 

manner and upon like payments or tenders, the commencement of drilling operations may 

be further deferred for periods of twelve (12) months each during the primary term.”). 

This fact lends substantial support to Cameron’s position that the Order of Payment 

imposes a two-year primary term, and then provides for a five-year extension that 

terminates after a maximum of two years, if drilling has not yet commenced. 

 Hess argues that, though the Order of Payment neglected to reference explicitly the 

option to make more than one annual “delay rental” payment during the primary term, this does 

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not necessarily “conflict with,” nor is it “inconsistent with” the habendum clause of the Cameron 

Lease. Indeed, as Hess correctly notes, even if the Order of Payment and the Cameron lease are 

found to be conflicting, the Court’s construction of the lease should attempt to harmonize all 

provision of the document, and should not dismiss any provision as inconsistent of there exists a 

reasonable interpretation that gives effect to both. See Farmers’ Nat’l Bank v. Delaware Ins. 

Co., 94 N.E. 834, 839 (Ohio 1911) (“The plain rule of construction requires that every provision 

of a contract shall be given effect if possible.”); Expanded Metal Fireproofing Co. v. Noel Const. 

Co., 101 N.E. 348, 350 (Ohio 1913) (“No provision of a contract is to be disregarded as 

inconsistent with other provisions, unless no other reasonable construction is possible. A special 

provision will be held to override a general provision only where the two cannot stand 

together.”) Thus, Hess argues, the Cameron Lease’s habendum clause should be harmonized 

with the Order of Payment’s “delay rental” provision to preserve the five-year primary term and, 

at minimum, authorize “delay rental” payments annually for every year thereof. This 

interpretation is also compelling, particularly given that the Order of Payment nowhere explicitly 

purports to redefine the phrase “primary term.” 

 In reviewing the four corners of the contracts here at issue, the Court finds that both 

Cameron and Hess have proffered reasonable interpretations that resolve in very different ways 

the apparent inconsistencies between habendum clause’s five-year “primary term” and five-year 

“additional term,” and the Order of Payment’s express authorization of two initial “delay rental” 

periods and subsequent acknowledgement that drilling may not have commenced by the advent 

of the “additional term.” Accordingly, the Court finds that the Cameron Lease and the Order of 

Payment are ambiguous as a matter of law. See Potti, 938 F.2d at 647 (“[T]he determination 

whether a contract is ambiguous is made as a matter of law by the court.”) (“Ambiguity exists ... 

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where contract language is susceptible to two or more reasonable interpretations.”) (citing Wells 

v. American Elec. Power Co., 548 N.E.2d 995 (Ohio 1988)). 

 That the interaction between the Cameron Lease and the Order of Payment is ambiguous 

is supported by the extrinsic evidence in record. At his deposition, Cameron testified that, when 

he signed the lease documents, he understood the contracts to grant the Lessee drilling rights for 

a primary term of five years, with “delay rentals” payable for each year of the primary term.4 

Furthermore, because Hess tendered, and Cameron accepted, four payments explicitly labeled 

“Delay Rental,” the record indicates that Cameron and Hess engaged in a course of conduct that 

arguably supports a finding that the parties intended the Cameron lease to remain in force for a 

primary term of five years, provided that the lessee pay a “delay rental” each year it did not 

commence drilling during that term. Thus, the Court concludes that the ambiguity of the 

Cameron Lease and Order of Payment creates a disputed question of material fact as to the 

parties’ intent that precludes summary judgment for either party. See Potti, 938 F.2d at 647 

(“[W]hen the relevant contract language is ambiguous ... the job of interpretation is turned over 

to the fact finder.”). 

                                                            

4 See D. Cameron Depo. pp. 33-34: 

Q: Let’s take it two steps at a time. You were supposed to receive a bonus, correct? 

A: Yes. 

Q: And then you were supposed to receive something annually, correct? 

A: Yes, ma’am. 

Q: For five years? 

A: Well, it was for five years, then they had the right to renew it for five. 

Q: And then they had the right to renew it, correct. But in the primary term of the lease, it was for 

five years? 

A: Yes. 

Q: It was supposed to be a hundred dollars first, second, third, fourth, year; sixth year went up to 

$500 an acre. 

A: Sixth, seventh year it was a hundred, eighth year it was a hundred, ninth year a hundred. 

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Based on the above, Plaintiffs’ motion for summary judgment is DENIED and Hess’s 

motion for summary judgment is DENIED as to Count VI of the First Amended Complaint and 

Count I of Hess’s Counterclaim. 

B. Mason Dixon’s Motion for Summary Judgment 

 Defendant Mason Dixon moves for summary judgment on all claims asserted against 

them in Plaintiffs’ First Amended Complaint, on the basis that Mason Dixon assigned the 

Griffiths and Cameron Leases and therefore has no present relationship with Plaintiffs or their 

property, nor any rights or responsibilities under the leases. Plaintiffs do not dispute that Mason 

Dixon has assigned their leasehold interests in the Griffiths and Cameron Leases. (Pl.’s Mem. in 

Opp., Doc. 53, 4.) 

In Counts I, II, IV, V, VI and VII of the First Amended Complaint, Plaintiffs “seek a 

declaration of their rights relative to the Leases.” (Id. at 3.) As such, Plaintiffs “readily concede 

that the declaration of rights flowing from this action will impact Plaintiffs and the current owner 

of the leasehold interest(s).” (Id.) In assigning the Griffiths and Cameron Leases, however, 

Mason Dixon extinguished all of its rights in those contracts under Ohio law. In alienating 

property via an assignment, the assignee “acquires” all attendant property rights, and the rights of 

the assignor are “extinguished.” 6 Am. Jur.2d, Assignments § 1 (2012) (“an assignment of a right 

is a manifestation of the assignor's intention to transfer it by virtue of which the assignor's right 

to performance by the obligor is extinguished ... and the assignee acquires a right to such 

performance....”); W. Broad Chiropractic v. Am. Family Ins., 912 N.E.2d 1093, 1095 (Ohio 

2009) (“An assignment is a transfer to another of all or part of one’s property in exchange for 

valuable consideration”). As a result, “an assignee ... stands in the shoes of the assignor ..., and 

succeeds to all the rights and remedies of the latter.” Inter Ins. Exch. of Chi. Motor Club v. 

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Wagstaff, 59 N.E.2d 373, 375 (Ohio 1945) (citing 3 Ohio Jurisprudence, 275, § 32; 38 Ohio 

Jurisprudence, 300, § 51; 4 American Jurisprudence, 321, § 115; 50 American Jurisprudence, 

752, § 110; 6 C.J.S., Assignments, § 85, p. 1142.). Thus, here, in assigning the Griffiths and 

Cameron Leases, Mason Dixon has no remaining interests in the leaseholds that might be 

adjudicated in Plaintiffs’ declaratory judgment action. See Ford Motor Credit Co. v. Ryan, 939 

N.E.2d 891, 921 (Ohio Ct. App. 2010) (affirming summary judgment for defendant on breach of 

contract claims because defendant had assigned its interest in the contract to another party). 

Plaintiffs counter that Mason Dixon has not actually extinguished all interests in the 

Griffiths and Cameron Leases because the operable assignments contained a warranty by which 

the lease’s assignees could require Mason Dixon, under certain circumstances, to “defend title to 

the interest conveyed [by the assignment] against the claims and demands of all persons 

whomsoever claiming or attempting to claim the same....” This warranty provision concerns the 

rights of assignees Marquette and Hess relative to Mason Dixon, and speaks not at all to any 

rights Plaintiffs may have relative to Mason Dixon, or vice versa. In any case, because Hess has 

not asserted any cross-claim for breach of warranty of title against Mason Dixon, the question of 

what rights may be conferred by the above warranty provision is irrelevant to the matter sub 

judice. In light of the above, Mason Dixon’s Motion is GRANTED as to Counts I, II, IV, V, VI 

and VII of the First Amended Complaint. 

Mason Dixon also moves this Court to grant summary judgment as to Plaintiffs’ claims 

for unjust enrichment (Count III). Under Ohio law, “unjust enrichment occurs when a person 

‘has and retains money or benefits which in justice and equity belong to another.’ ” Johnson v. 

Microsoft Corp., 106 Ohio St.3d 278, 283, 834 N.E.2d 791 (Ohio 2005) (quoting Hummel v. 

Hummel, 133 Ohio St. 520, 528, 14 N.E.2d 923 (Ohio 1938)). As such, “The purpose of an 

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unjust enrichment claim is not to compensate a party for any loss or damage suffered by him, but 

to reimburse him for the benefit he has conferred on another.” Shively v. MPW Indus. Water 

Svcs., Inc., N. 2:10-cv-10, 2010 WL 2696806, at *3 (S.D. Ohio July 6, 2010) (citing Hughes v. 

Oberholtzer, 123 N.E.2d 393 (Ohio 1954)). 

In Ohio, a plaintiff must satisfy three elements to state a claim for an unjust enrichment 

claim: (1) a benefit conferred by a plaintiff upon a defendant; (2) knowledge by the defendant of 

the benefit; and (3) retention of the benefit by the defendant under circumstances where it would 

be unjust to do so without payment. Hambleton v. R.G. Barry Corp., 465 N.E.2d 1298 (Ohio 

1984). Furthermore, “a claim for unjust enrichment will not be satisfied if a party can only show 

that it has conferred a benefit upon another; it must be proven, by the party claiming unjust 

enrichment, that it would be unconscionable for the other party to retain the benefit.” Shively, 

2010 WL 2696806, at *3 (citing Cincinnati v. Fox, 49 N.E.2d 69 (Ohio Ct. App. 1943)). In 

addition, “there must be a ‘tie of causation’ between the plaintiff’s loss and the defendant’s 

benefit.” Bower v. Intern’l Bus. Machines, Inc., 495 F.Supp.2d 837, 844 (S.D. Ohio 2007) (citing 

Laurent v. Flood Data Serv., Inc., 766 N.E.2d 221, 226 (Ohio Ct. App. 2001)). 

Here, Plaintiffs argue that they conferred on Mason Dixon the benefit of leasehold 

interests, and that Mason Dixon was able to profit by assigning those interests. (Pl.’s Mem. in 

Opp., Doc. 53, 8-9.) Mason Dixon argues that it received no benefit from its assignment of the 

Griffiths and Cameron Leases. Specifically, Mason Dixon provides affidavit evidence that in 

August 2006, Mason Dixon was retained by Marquette “to research, negotiate and lease oil and 

gas rights in Jefferson County, Ohio,” and the terms of Mason Dixon’s agreement with 

Marquette required Mason Dixon “to take the leases in its own name [and] then ... assign the 

leases to market at a later date.” (Bowers Aff., Doc. 54-1, ¶ 10.) Mason Dixon’s representative 

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avers that, pursuant to that agreement, Mason Dixon entered into approximately 308 oil and gas 

leases that were subsequently assigned to Marquette, including the Griffiths and Cameron 

Leases. (Id. at ¶¶ 11-12.) Hence, Mason Dixon argues that it made no additional or separate 

profit from the assignment of the Griffiths and Cameron Leases to Marquette because those 

assignments “fell within the scope of Mason Dixon Energy’s overall project agreement with 

Marquette.” (Id. at ¶ 13.) 

Based on the above, this Court does not find, as a matter of law, that Mason Dixon 

incurred no benefit from the Griffiths and Cameron Leases. Although it is unclear how Mason 

Dixon was compensated for its services in procuring oil and gas leases, or whether Marquette 

required Mason Dixon to procure some threshold number of leases and/or mineral acres, etc., at 

minimum Mason Dixon’s actions in securing the Griffiths and Cameron Leases served its 

interests in fulfilling its contractual obligations to Marquette. As such, viewing these facts in the 

light most favorable to the non-moving party, a reasonable jury could conclude that Mason 

Dixon did derive a benefit from Plaintiffs because its actions in procuring the leases enabled 

Mason Dixon to fulfill its obligations to Marquette and to profit thereby. Furthermore, drawing 

all reasonable inferences from the facts above, a reasonable jury could likewise conclude that 

Mason Dixon would have known that it stood to benefit from executing the Griffiths and 

Cameron Leases, or it would not have done so. Thus, there exist genuine issues of material fact 

as to whether Plaintiffs are able to satisfy the first and second elements of an unjust enrichment 

claim with respect to Mason Dixon. 

Plaintiffs further argue that it would be unjust for Mason Dixon to retain this benefit 

because Mason Dixon’s conduct in procuring the Griffiths and Cameron leases was “at best 

grossly negligent, and at worst, purposely deceitful.” (Id. at 6.) As evidence of these unfair 

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business practices, Plaintiffs point to the evidence in the record of the irregularities in the 

execution of the leases at issue, including: 1) Mason Dixon’s representative directing Stephen 

Griffith to sign the Griffiths Lease on his wife’s name, and subsequently notarizing the 

document; and 2) Mason Dixon’s representative directing Cameron to sign the Cameron Lease 

and Order of Payment, and then taking it to be notarized outside Cameron’s presence. S. Griffith 

Depo., pp. 31-32; Cameron Depo., p. 27. Viewed in the light most favorable to the Plaintiffs, 

there is a causal connection between Plaintiffs losses from the leases and Defendant’s conduct. 

Laurent, 766 N.E.2d at 226 (“The plaintiff must confer the benefit as a response to fraud, 

misrepresentation, or bad faith on behalf of the defendant. That is, there must be a tie of 

causation between the plaintiff's loss and the defendant's benefit.”) (internal citations omitted) 

(citing Natl. City Bank v. Fleming 440 N.E.2d 590 (Ohio 1981); Elbert v. West, 1986 WL 9131, 

at *5 (Ohio Ct. App. Aug. 20, 1986)). Although Mason Dixon disputes that it engaged in unfair 

or deceptive business practices in securing the Griffiths and Cameron Leases, Plaintiffs have 

created a disputed issue of material fact as to whether it would be just for Mason Dixon to obtain 

any benefit obtained from its conduct toward them. Shively, 2010 WL 2696806, at *3 (citing 

Cincinnati v. Fox, 49 N.E.2d 69 (Ohio Ct. App. 1943)). 

Finally, Mason Dixon argues that Plaintiffs may not state a claim for unjust enrichment in 

light of the existing contracts. Under Ohio law, a plaintiff cannot sustain a quasi-contract claim, 

such as unjust enrichment, where there is an express contract covering the same subject matter. 

Arcade Co. Lt. V. Arcade, LLC, 105 Fed. Appx. 808, 811 (6th Cir. 2004) (citing Williams v. 

Goodyear Aircraft Corp., 85 N.E.2d 601, 604 (1948) (“The law does not recognize the 

coexistence of a quasi contract and an express contract covering the same subject.”)). Here, 

however, there exists a disputed question of material fact as to whether the Griffiths and 

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Cameron Leases were invalid and/or unenforceable due to various defects in their execution; 

indeed, in considering Plaintiffs’ and Hess’s motions for summary judgment, this Court assumed 

rather than decided that the relevant contracts were valid and enforceable. As such, until there is 

an actual determination that express contracts exist, Plaintiffs may sustain parallel claims for 

unjust enrichment. See Shively, 2010 WL 2696806, at *4 (denying motion to dismiss in the 

absence of a valid and enforceable written contract) (citing Williams, 85 N.E.2d at 604). 

In light of the above, the Court finds there are disputed issues of material fact that 

preclude summary judgment as to Plaintiffs’ unjust enrichment claims against Mason Dixon. 

Mason Dixon’s Motion is DENIED as to Count III of the First Amended Complaint. 

V. CONCLUSION 

 For the reasons set forth herein, Plaintiffs’ Motion, (Doc. 37), is GRANTED in part and 

DENIED in part; Hess’s Motion, (Doc. 42), is DENIED; and Mason Dixon’s Motion, (Doc. 51), 

is GRANTED in part and DENIED in part. 

IT IS SO ORDERED. 

s/Algenon L. Marbley_________ 

ALGENON L. MARBLEY 

UNITED STATES DISTRICT JUDGE 

 

DATE: September 24, 2013

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