[Cite as RHDK Oil & Gas, L.L.C. v. Willowbrook Coal Co. , 2024

- Ohio

- 1134.]

COURT OF APPEALS

TUSCARAWAS COUNTY, OHIO

FIFTH APPELLATE DISTRICT

RHDK OIL & GAS, LLC DBA RED

HILL DEVELOPMENT, ET AL. :

: JUDGES:

:

: Hon. John W. Wise, P.J.

Plaintiffs

- Appellees : Hon. Patricia A. Delaney, J.

: Hon. Craig R. Baldwin, J.

- vs

- :

: Case No. 2023 AP 06 0038

:

WILLOWBROOK COAL COMPANY,

ET AL. :

:

:

:

Defendants

- Appellants : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County

Court of Common Pleas, Case No. 2017

CV 05 0329

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY:

APPEARANCES: March 25, 2024

For Plaintiffs

- Appellees: For Defendants

- Appellants:

DAVID E. BUTZ THOMAS A. YOUNG

MATTHEW W. ONEST 41 S. High St., 29th Floor

4775 Munson St. NW Columbus, OH 43215

- 6194

P.O. Box 36963

Canton, OH 44735

- 6963 SEAN E. JACOBS

1 Easton Oval, Suite 340

NATHAN D. VAUGHAN Columbus, OH 43219

3596 State Route 39 NW

Dover, OH 44622 JEFFREY T. WITSCHEY

BETSY L. BARE

- HARTSCHUH

405 Rothrock Road, Suite 103

Akron, OH 44321[Cite as RHDK Oil & Gas, L.L.C. v. Willowbrook Coal Co. , 2024

- Ohio

- 1134.]

Delaney, J.

{¶1} Defendants/Counterclaim Plaintiffs

- Appellants appeal the June 14, 2023

judgment entry of the Tuscarawas County Court of Common Pleas.

FACTS AND PROCEDURAL HISTORY

{¶2} The facts and procedural history come in part from our previous decision in

RHDK Oil & Gas, LLC v. Willowbrook Coal Company

, 5th Dist. Tuscarawas No. 2020 AP

08 0017, 2021

- Ohio

- 1362 (“ RHDK I ”).

{¶3} Plaintiffs/Counterclaim Defendants

- Appellees are Gary D. Kimble, Eric S.

Kimble, Jo Elaine Mako, Keith Kimble, Gregory W. Kimble, Doris J. Kimble, RHDK

Investments, LLC, Kimble Company, Jem Ori, LLC, Esk Ori, LLC, Gdk Ori, LLC, Gwk Ori,

LLC and Kbd Ori, LLC and RHDK Oil & Gas, LLC d.b.a. Red Hill Development (hereinafter

“RHDK”). Defendants/Counterclaim Plaintiffs

- Appellants are Willowbrook Coal Company,

William Deadman, Roxanna Deadman, Brenda Neal, Andrew Carrick, and Frank H.

Gorskey, II (hereinafter “Willowbrook”).

{¶4} RHDK I and the present appeal arose from efforts of some of the parties, in

1977, to start a joint venture in the development of oil and gas leases in Tuscarawas and

Coshocton County. RHDK owned and operated pipelines and wells on Willowbrook

properties. The precise details of the changes in the relationships, parties, and the

documentation of the interests of the parties is unnecessary for the resolution of this

appeal, except to note that at some time, the parties disagreed on the description of their

interests in the relevant properties. In 2014, RHDK filed its first complaint seeking

resolution of the dispute. That complaint was dismissed on May 10, 2017, amended, and

refiled in Case No. 2017 CV 05 0329.[Cite as RHDK Oil & Gas, L.L.C. v. Willowbrook Coal Co. , 2024

- Ohio

- 1134.]

{¶5} The parties engaged in extensive discovery and pleading practice up to the

settlement of the civil action through a mediation completed in March 2019. The parties

memorialized the settlement in two documents captioned “Memorandum of Settlement

Agreement” (hereinafter “MSA”) and “Settlement in Principal” (hereinafter “SIP”). The

MSA contained terms of the settlement agreement and incorporated additional

information from the SIP. The parties recognized that additional documentation would be

necessary to complete the settlement, so they included paragraph sixteen in the MSA:

The parties will cooperate in drafting and executing a comprehensive

settlement agreement and other documents necessary to effectuate the

settlement.

These “other documents” included transfers of various interests in minerals, primarily oil

and gas, as well as issues involving rights

- of

- way, leases, royalties, and taxes. The

parties also included a provision in the MSA that would permit them to seek a judicial

resolution of disputes regarding those “other documents”:

The parties will endeavor to have the Court retain jurisdiction over this case

to enforce the this (SIC) memorandum and the comprehensive settlement

agreement and any disputes arising under either agreement. Any disputes

arising under the aforesaid shall be submitted to the Judge. (MSA ¶ 19.)

The parties accepted these documents as a full and final settlement binding on all parties

and they notified the trial court of the status of the litigation.

{¶6} The trial court recognized “that extraordinary measures will be necessary to

finalize the resolution/settlement of this litigation” but expected the parties to resolve the

case expeditiously.[Cite as RHDK Oil & Gas, L.L.C. v. Willowbrook Coal Co. , 2024

- Ohio

- 1134.]

{¶7} The trial court monitored the status of the case and regularly requested

progress reports from the parties. The parties represented that they exchanged proposed

settlement documents on multiple occasions but were unable to resolve all disputes. After

failing to reach an agreement upon all the issues necessary to complete the transactional

documents to carry out the terms of the settlement, the parties agreed to meet for two

days in January 2020 with the guidance of the mediator that assisted them in the

completion of the MSA.

The January 2020 Documents

{¶8} The result of the January 2020 meeting/mediation was disputed but the

parties agreed that in order to finalize the settlement of the litigation through the MSA/SIP,

the parties were required to draft documents. RHDK contended that the attorneys

reviewed each disputed issue closely, drafted language that addressed all concerns and

reached a final agreement regarding the necessary documents. RHDK drafted

documents based upon the agreements reached by the attorneys and forwarded them to

Willowbrook’s counsel two days after the conclusion of the conference. Willowbrook

viewed the January meeting differently and reported that they did not agree to any terms

at the meeting. Instead, it described the outcome of the meeting as a proposal by RHDK’s

counsel that remained to be reviewed and considered by Willowbrook. The documents

drafted by RHDK after the mediation, provided to Willowbrook, and disputed by

Willowbrook were known as the “January 2020 Documents.”

{¶9} In February 2020, the trial court ordered a status conference regarding

progress toward the completion of documents necessary to carry out the settlement. On[Cite as RHDK Oil & Gas, L.L.C. v. Willowbrook Coal Co. , 2024

- Ohio

- 1134.]

June 2, 2020, RHDK filed a motion to enforce the settlement. RHDK moved the trial court

to order that the January 2020 Documents were required to effectuate the MSA/SIP.

{¶10} The trial court conducted the Final Resolution Hearing via telephone on July

24, 2020 during which time the parties argued their position and offered exhibits in support

of their contention. Neither party presented sworn testimony of witnesses. RHDK provided

the trial court with the January 2020 Documents. Though rejected by Willowbrook, RHDK

argued that January 2020 Documents represented an appropriate final resolution to all

outstanding requirements. Willowbrook did not provide the trial court with an alternative,

arguing that January 2020 Documents were inappropriate for several reasons and

suggested that the parties could benefit from an additional sixty days to resolve the

remaining disputes. Willowbrook described their objections to parts of the January 2020

Documents in their Hearing Brief and offered a color

- coded exhibit at the hearing that

highlighted language they disputed.

The August 20, 2020 Judgment Entry

{¶11} On August 20, 2020, the trial court issued a judgment entry containing a

thorough review of the proceedings leading to the hearing and noted that “any evidence

presented by the parties at the hearing was considered by the Court only for purposes of

filling in any gaps left by the MSA/SIP and not for purposes of varying any of the terms of

the MSA and/or those portions of the SIP specifically incorporated into the MSA.”

(Judgment Entry, Aug. 20, 2020, p. 7).

{¶12} Willowbrook had filed a motion in limine to restrict testimony regarding the

January 2020 mediation. The trial court noted in its judgment entry that it was “not

considering any mediation communication for purposes of its determination of Plaintiffs’[Cite as RHDK Oil & Gas, L.L.C. v. Willowbrook Coal Co. , 2024

- Ohio

- 1134.]

Motion to Enforce Settlement,” that it was making “no determination regarding whether

counsel for the parties did or did not agree to the various provisions set forth in the

January 2020 Documents” because “that issue [was] not determinative of the Court's

ruling on Plaintiffs’ Motion to Enforce Settlement.” The trial court also decided that “for

purposes of Plaintiffs’ Motion to Enforce Settlement, the Court [would] not consider the

January 2020 Documents as being agreed to by Defendants or their counsel in January

2020 or at any other time.” (August 20, 2020 Judgment Entry, p. 8).

{¶13} The trial court found the MSA/SIP was a valid enforceable settlement

agreement containing the essential terms of the parties’ settlement and that it had

jurisdiction to enforce the terms of the parties’ agreement as requested by RHDK.

{¶14} The trial court next found that RHDK had submitted the January 2020

Documents and requested that the documents be adopted by the trial court as the

documents necessary to complete the settlement. The trial court noted that Willowbrook

did not provide an alternative set of documents, but instead suggested that the parties be

provided an additional sixty days to negotiate. The trial court rejected Willowbrook’s

suggestion, finding “that it is unlikely that the parties will be able to reach such an

agreement in the next sixty days.” (August 20, 2020 Judgment Entry, p. 4).

{¶15} The trial court reviewed the MSA/SIP and found that the January 2020

Documents appropriately filled the gaps left by the MSA/SIP, that they were not

inconsistent with the parties’ settlement agreement, did not contradict the settlement

agreement and that those documents, together with the MSA/SIP reach a fair and just

resolution of the issues in the case. The trial court did find that it was necessary to amend

the January 2020 Documents “to remove the provisions requiring defendants to pay[Cite as RHDK Oil & Gas, L.L.C. v. Willowbrook Coal Co. , 2024

- Ohio

- 1134.]

certain ad valorem, production, severance and other taxes related to the Group 3 Leases

unless those taxes are specifically imposed upon them.” (August 20, 2020 Judgment

Entry, p. 19). Of major importance to this current appeal, the August 20, 2020 Judgment

Entry ordered the parties to execute the January 2020 Documents on or before

September 16, 2020 and submit to them to opposing counsel on or before September 18,

2020 and that all transfers shall be submitted to the appropriate county recorder's office

on or before September 23, 2020.

{¶16} The trial court did not address Willowbrook’s specific objections to the

January 2020 Documents set out in its Hearing Brief, nor did it include an analysis of the

color

- coded exhibit offered by Willowbrook. Instead, it issued a general holding in favor

of RHDK. Willowbrook did not request more detailed findings of fact or conclusions of law

from the trial court.

RHDK I

{¶17} Willowbrook appealed the August 20, 2020 judgment entry to this Court in

RHDK Oil & Gas, LLC v. Willowbrook Coal Company

, 5th Dist. Tuscarawas No. 2020 AP

08 0017, 2021

- Ohio

- 1362. We overruled Willowbrook’s sole assignment of error and

affirmed the judgment of the trial court, finding it did not abuse its discretion when it

determined the January 2020 Documents, as modified by the August 20, 2020 Judgment

Entry, satisfied the requirement of the MSA/SIP to draft documents to give effect to its

terms. RHDK I

, 2021

- Ohio

- 1362, ¶ 54.

{¶18} Willowbrook filed a Memorandum of Jurisdiction with the Ohio Supreme

Court seeking a discretionary appeal of our decision, but the Court declined jurisdiction

in RHDK Oil & Gas, LLC. V. Willowbrook Coal Co

., 164 Ohio St.3d 1448, 2021

- Ohio

-[Cite as RHDK Oil & Gas, L.L.C. v. Willowbrook Coal Co. , 2024

- Ohio

- 1134.]

3336, 173 N.E.3d 1242. The Supreme Court denied a motion for reconsideration in RHDK

Oil & Gas, LLC. V. Willowbrook Coal Co

., 165 Ohio St.3d 1481, 2021

- Ohio

- 4289, 177

N.E.3d 1006.

Continued Negotiations

{¶19} While the matter was pending before the Ohio Supreme Court, the parties

continued exchanging documentation to move towards completing the settlement. In

November 2021, RHDK submitted the January 2020 Documents and additional

documentation to Willowbrook in order to effectuate the August 20, 2020 Judgment Entry

(“November 2021 Documents”). A dispute arose in 2022 thereby disrupting the parties’

finalization of the Settlement and Release Agreement pursuant to the August 20, 2020

Judgment Entry. We hereinafter refer to the dispute, which is the main subject of this

appeal, as “the 2022 Pipeline Operations.”

{¶20} For brevity, we provide a simplistic summary of “the 2022 Pipeline

Operations.” After years of negotiations and litigation, there remained a few disputed

Willowbrook parcels of land where RHDK pipelines were located. Willowbrook allegedly

refused to grant RHDK easements to the disputed parcels. RHDK moved the pipelines

from the disputed parcels of land. Willowbrook became aware of the pipeline removal in

May 2022. Willowbrook claimed RHDK’s unauthorized removal of the pipelines damaged

its parcels of land.

Competing Civ.R. 70 Motions

{¶21} On July 19, 2022, RHDK filed a Civ.R. 70 Motion with the trial court,

requesting the trial court order Willowbrook to execute the settlement documents sent to

Willowbrook on July 5, 2022. On August 2, 2022, Willowbrook filed its opposition to[Cite as RHDK Oil & Gas, L.L.C. v. Willowbrook Coal Co. , 2024

- Ohio

- 1134.]

RHDK’s Civ.R. 70 motion and filed its own Civ.R. 70 motion. It moved the trial court to

order RHDK to execute Willowbrook’s corrected July 5, 2022 documents. Willowbrook’s

corrected July 5, 2022 documents included non

- substantive changes (such as

typographical errors) and a substantive change to the general release language

contained in Settlement and Release Agreement. Willowbrook claimed the substantive

change in the general release language was related to the 2022 Pipeline Operations,

which occurred after the parties signed the MSA on March 28, 2019. Willowbrook

contended the general release language in RHDK’s July 5, 2022 documents contained

broad language in which Willowbrook would release RHDK from any claims “arising out

of, by reason of or in any way connected to the Lawsuit or the Parties’ relationship

concerning the oil and gas business conducted or which could have been conducted

and/or participated in together by the Parties prior to the Effective Date.” Willowbrook

argued that language would prohibit it from pursuing any legal remedies to address the

2022 Pipeline Operations. Willowbrook’s corrected July 5, 2022 documents proposed

additional language to preserve its claims based on the 2022 Pipeline Operations.

{¶22} In its response to RHDK’s Civ.R. 70 motion, Willowbrook attached the

reports of Paul Pullins, who inspected the allegedly damaged parcels of land and made

reports of the damage based on the 2022 Pipeline Operations. (Defendants’

Memorandum in Opposition to Plaintiffs’ July 19, 2022 Civ.R. 70 Motion, August 2, 2022,

Exhibits I, J, K, L, M). Willowbrook also attached photographs of the allegedly damaged

parcels of land. In its August 23, 2022 reply to its Civ.R. 70 motion, Willowbrook attached

the August 19, 2022 affidavit of Paul Pullins, which spoke to the Exhibits I through M[Cite as RHDK Oil & Gas, L.L.C. v. Willowbrook Coal Co. , 2024

- Ohio

- 1134.]

attached to Willowbrook’s memorandum in opposition filed on August 2, 2022. (Exhibit

A).

Willowbrook’s Motion for Relief from the August 20, 2020 Judgment

{¶23} On August 23, 2022, Willowbrook filed a Motion for Relief from the August

20, 2020 Judgment pursuant to Civ.R. 60(B)(4) and 60(B)(5). Willowbrook characterizes

the motion for relief from judgment as seeking the same relief as its Civ.R. 70 motion.

(Willowbrook Appellate Brief, p. 6). It moved the trial court for an order relieving it of the

requirement to sign the Settlement and Release Agreement adopted by the trial court in

its August 20, 2020 Judgment Entry unless the fifth and sixth Recitals and general release

language of the January 2020 Documents were modified. It argued the motion should be

granted because “it was not equitable for the release language contained in the January

2020 Settlement Agreement to bar claims that Defendants have or may have in the future

against Plaintiffs” arising out of the 2022 Pipeline Operations. The only exhibit attached

to the Civ.R. 60(B) motion was Willowbrook’s proposed changes to the July 5, 2022

documents. (Exhibit A). Willowbrook referenced its August 2, 2022 Civ.R. 70 motion and

its August 23, 2022 reply to the Civ.R. 70 motion.

{¶24} RHDK filed its response to the Civ.R. 60(B) motion. The response set forth

multiple reasons why the trial court should deny the motion. It first argued that

Willowbrook was not entitled to an evidentiary hearing on its Civ.R. 60(B) motion because

it failed to set forth operative facts of a meritorious claim or defense of at least affidavit

quality to the August 20, 2020 Judgment Entry. Willowbrook could not obviate the rule by

referring to exhibits it attached to its Civ.R. 70 motion. It then disputed the 2022 Pipeline

Operations were unauthorized based on the March 2019 settlement. RHDK claimed that[Cite as RHDK Oil & Gas, L.L.C. v. Willowbrook Coal Co. , 2024

- Ohio

- 1134.]

it offered to repair the alleged damage, but Willowbrook would not permit the repairs. It

next argued that the relief Willowbrook sought was contained within the indemnity

provision of the RHDK July 5, 2022 Documents.

{¶25} Willowbrook provided its reply to its Civ.R. 60(B) motion on September 12,

2022. Willowbrook argued it had demonstrated a meritorious defense because it was

undisputed that RHDK engaged in the 2022 Pipeline Operations. It had presented

evidence of the damage caused by the 2022 Pipeline Operations through the August 19,

2022 affidavit of Paul Pullins and his reports, albeit attached to the reply of a previously

filed motion. In a footnote, Willowbrook argued the trial court could consider the previously

filed affidavit and reports as evidentiary material in support of its motion for relief from

judgment. (Reply of Defendant/Counterclaim Plaintiffs to Plaintiffs/Counterclaim

Defendants’ Response in Opposition to Defendants/Counterclaim Plaintiffs’ Civ.R.

60(B)(4) and (5) Motion, September 12, 2022, fn. 3). Willowbrook refuted RHDK’s claims

that the 2022 Pipeline Operation was authorized and that it had a remedy through

indemnification. Pursuant to Civ.R. 60(B), Willowbrook claimed the 2022 Pipeline

Operations were unforeseeable when it was bound by the terms of the August 20, 2020

Judgment Entry and it would be harmed if the judgment entry was not vacated as to the

general release language of the Settlement and Release Agreement.

{¶26} On September 12, 2022, the trial court held a hearing on the parties’

competing Civ.R. 70 motions. The trial court did not consider the pending Civ.R. 60(B)

motion.

{¶27} On March 30, 2023, Willowbrook filed the March 20, 2023 affidavit of Paul

Pullins. The affidavit averred that Paul Pullins had reinspected the alleged damaged[Cite as RHDK Oil & Gas, L.L.C. v. Willowbrook Coal Co. , 2024

- Ohio

- 1134.]

parcels in December 2022 and prepared a report on his findings. The affidavit appeared

to be filed in support of Willowbrook’s pending Civ.R. 60(B) motion. RHDK filed a motion

to strike the affidavit as untimely filed pursuant to Civ.R. 6(C)(1), Civ.R. 26(B)(7)(c), and

Loc.R. 4.05 of the Tuscarawas County Court of Common Pleas, General Division.

Willowbrook filed a memorandum in opposition on April 12, 2023.

{¶28} The trial court held a status hearing on April 21, 2023 in order to bring some

clarity to the language of the Settlement and Release Agreement. No resolution was

reached.

The June 14, 2023 Judgment Entry

{¶29} The trial court issued its judgment entry on June 14, 2023, resolving the

four pending matters: (1) RHDK’s Civ.R. 70 motion; (2) Willowbrook’s Civ.R. 70 motion;

(3) Willowbrook’s Civ.R. 60(B) motion; and (4) RHDK’s motion to strike the March 30,

2023 affidavit of Paul Pullins.

{¶30} The trial court first addressed the parties’ Civ.R. 70 motions. It noted the

August 20, 2020 Judgment Entry ordered the parties to adopt the January 2020

Documents as the documents that the parties must complete and execute to effectuate

the terms of the MSA, with some modifications and/or additions set forth in the August

20, 2020 Judgment Entry. This Court affirmed the August 20, 2020 Judgment Entry in

RHDK I and the Ohio Supreme Court declined jurisdiction over the matter. We quote the

trial court’s deft conclusion of an over six

- year litigation of January 2020 Documents,

November 2021 Documents, and July 5, 2022 Documents:

The Court FINDS that both Plaintiffs and Defendants are requesting an

Order directing the respective parties to sign a settlement and release[Cite as RHDK Oil & Gas, L.L.C. v. Willowbrook Coal Co. , 2024

- Ohio

- 1134.]

agreement along with ancillary documents. The Court FINDS that the

settlement and release agreement along with the ancillary documents set

forth by the Plaintiffs with the non

- substantive changes requested by

Defendants reflects the documents contemplated by this Court in its August

2020 Judgment Entry and FINDS that they should be executed by all parties

herein.

(June 14, 2023 Judgment Entry, p. 10). The trial court granted RHDK’s Civ.R. 70 motion

to order Willowbrook to sign the Settlement and Release Agreement with the July 5, 2022

Documents (with the non

- substantive changes recommended by Willowbrook) and

denied Willowbrook’s Civ.R. 70 motion to order RHDK to sign its corrected July 5, 2022

Documents with the substantive change to the general release statement.

{¶31} The trial court next addressed Willowbrook’s motion for relief from the

August 20, 2020 Judgment Entry. The trial court found that Willowbrook was not entitled

to an evidentiary hearing because the motion and supporting evidence did not contain

sufficient allegations of operative facts to support Willowbrook’s meritorious claims and/or

defenses to the August 20, 2020 Judgment Entry. The trial court then determined that

Willowbrook failed to meet the elements for relief from judgment pursuant to Civ.R.

60(B)(4) and 60(B)(5).

{¶32} The trial court denied RHDK’s motion to strike the affidavit of Paul Pullins.

{¶33} Finally, the trial court ordered that the parties fully execute the Settlement

and Release Agreement and ancillary/transactional documents (found in Exhibit 1 to

RHDK’s post

- hearing brief regarding the settlement agreement) unless mutually modified

on or before June 30, 2023. Pursuant to Civ.R. 70, RHDK was to authorize an individual[Cite as RHDK Oil & Gas, L.L.C. v. Willowbrook Coal Co. , 2024

- Ohio

- 1134.]

of its choosing to execute all necessary documents should Willowbrook fail or refuse to

sign the documents on or before June 30, 2023.

{¶34} It is from this June 14, 2023 judgment entry that Willowbrook now appeals.

ASSIGNMENTS OF ERROR

{¶35} Willowbrook raises six Assignments of Error:

I. THE TRIAL COURT ERRED IN DENYING DEFENDANTS’ CIV.R. 60(B)

MOTION (DOCKET NO. 384) ON THE GROUNDS THAT DEFENDANTS

FAILED TO ALLEGE FACTS WHICH WOULD SUPPORT A FINDING

THAT DEFENDANTS HAD A MERITORIOUS CLAIM TO PRESENT IF

DEFENDANTS’ CIV.R. 60(B) MOTION WERE GRANTED. THIS ERROR

OCCURRED ON PAGES 11 AND 13 OF THE TRIAL COURT’S JUNE 14,

2023 JUDGMENT ENTRY (DOCKET NO. 410). A COPY OF THE JUNE

14, 2023 JUDGMENT ENTRY IS ATTACHED HERETO AS EXHIBIT A

.

II. THE TRIAL COURT ERRED IN DENYING DEFENDANTS’ CIV.R. 60(B)

MOTION ON THE GROUNDS DEFENDANTS FAILED TO ESTABLISH

THAT THEY ARE ENTITLED TO RELIEF UNDER CIV.R. 60(B)(4) OR

CIV.R. 60(B)(5). THIS ERROR OCCURRED ON PAGES 11 AND 13 OF

THE JUNE 14, 2023 JUDGMENT ENTRY.

III. THE TRIAL COURT ERRED IN DENYING DEFENDANTS’ CIV.R. 60(B)

MOTION WITHOUT CONDUCTING AN EVIDENTIARY HEARING. THIS

ERROR OCCURRED ON PAGES 9

- 10, 11 AND 13 OF THE JUNE 14,

2023 JUDGMENT ENTRY.[Cite as RHDK Oil & Gas, L.L.C. v. Willowbrook Coal Co. , 2024

- Ohio

- 1134.]

IV. THE TRIAL COURT ERRED IN GRANTING PLAINTIFFS’ CIV.R. 70

MOTION FILED ON JULY 19, 2022 (DOCKET NO. 371). THIS ERROR

OCCURRED ON PAGE 12 OF THE JUNE 14, 2023 JUDGMENT ENTRY.

V. THE TRIAL COURT ERRED IN ORDERING THAT THE PARTIES

EXECUTE ALL DOCUMENTS ON OR BEFORE JUNE 30, 2023. THIS

ERROR OCCURRED ON PAGE 13 OF THE JUNE 14, 2023 JUDGMENT

ENTRY.

VI. THE TRIAL COURT ERRED IN ORDERING THAT IF DEFENDANTS

FAILED TO EXECUTE ALL DOCUMENTS ON OR BEFORE JUNE 30,

2023, PLAINTIFFS WERE AUTHORIZED TO DESIGNATE A PERSON OF

THEIR CHOOSING TO EXECUTE ALL SUCH DOCUMENTS. THIS

ERROR OCCURRED ON PAGE 13 OF THE JUNE 14, 2023 JUDGMENT

ENTRY.

ANALYSIS

I., II., and III.

{¶36} We consider Willowbrook’s first, second, and third Assignments together

because they are interrelated. Willowbrook contends the trial court abused its discretion

when it denied its motion for relief from the August 20, 2020 Judgment Entry. We

disagree.

{¶37} A motion for relief from judgment under Civ.R. 60(B) lies in the trial court's

sound discretion. Griffey v. Rajan

, 33 Ohio St.3d 75, 514 N.E.2d 1122 (1987). To find an

abuse of that discretion, we must determine the trial court's decision was unreasonable,

arbitrary, or unconscionable and not merely an error of law or judgment. Blakemore v.[Cite as RHDK Oil & Gas, L.L.C. v. Willowbrook Coal Co. , 2024

- Ohio

- 1134.]

Blakemore

, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). Willowbrook bases its motion on

Civ.R. 60(B)(4) and 60(B)(5). In GTE Automatic Electric Inc. v. ARC Industries, Inc

., 47

Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the syllabus, the Supreme

Court of Ohio held the following:

To prevail on a motion brought under Civ.R. 60(B), the movant must

demonstrate that: (1) the party has a meritorious defense or claim to present

if relief is granted; (2) the party is entitled to relief under one of the grounds

stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a

reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or

(3), not more than one year after the judgment, order or proceeding was

entered or taken.

Reasonable Time

{¶38} The Tenth District Court of Appeals explained the timeliness of the Civ.R.

60(B) motion:

With respect to the timeliness of a motion, Civ.R. 60(B) incorporates a two

part standard. For relief under Civ.R. 60(B)(1), (2) or (3), the movant must

seek relief “within a reasonable time, and * * * not more than one year after

the judgment.” Relief under Civ.R. 60 (B)(4) and (5) is not subject to the

one

- year limitation, but must still be sought within a reasonable time. This

court has stated that “[j]ust because a Civ.R. 60(B) motion is filed within one

year of the underlying judgment does not mean the motion was filed within

a reasonable time.” GMAC Mtge. v. Lee

, 10th Dist. No. 11AP

- 796, 2012

-

Ohio

- 1157, [2012 WL 949951], ¶ 21, citing EMC Mtge. Corp. v. Pratt

, 10th[Cite as RHDK Oil & Gas, L.L.C. v. Willowbrook Coal Co. , 2024

- Ohio

- 1134.]

Dist. No. 07AP

- 214, 2007

- Ohio

- 4669, [2007 WL 2634372], ¶ 8, citing

Adomeit v. Baltimore

, 39 Ohio App.2d 97, 106 [316 N.E.2d 469] (8th Dist.

1974). “The relief provided by Civ.R. 60(B) is equitable in nature, and a

party must act diligently to be entitled to it.” Id

. at ¶ 23, citing Morris v. Grubb

,

2d Dist. No. 15177, [1996 WL 132202] (Mar. 8, 1996). “Failure to seek relief

from judgment for a substantial period of time after the movant is aware of

the grounds for relief demonstrates a lack of due diligence.” Id

., citing

Morris

.

J.N. v. L.A

., 2022

- Ohio

- 974, 186 N.E.3d 350, ¶ 31 (5th Dist.) quoting Yaklevich v.

Dinneen

, 10th Dist. Franklin No. 20AP

- 322, 2021

- Ohio

- 4531, 2021 WL 6087621, ¶ 9.

{¶39} The judgment from which Willowbrook sought relief in 2022 was issued on

August 20, 2020. As Willowbrook brought its motion for relief from judgment pursuant to

Civ.R. 60(B)(4) and 60(B)(5), its motion was not subject to the one

- year limitation. RHDK

did not contend in its memorandum in opposition that Willowbrook’s motion for relief from

judgment was not sought in a reasonable time.

No Evidence of a Meritorious Claim, No Evidentiary Hearing

{¶40} Willowbrook contends the trial court erred in denying its motion for relief

from judgment without first conducting an evidentiary hearing. The Supreme Court of Ohio

addressed the standard for obtaining a hearing in Kay v. Marc Glassman, Inc

., 76 Ohio

St.3d 18, 1996

- Ohio

- 430, 665 N.E.2d 1102 (1996):

Appellant initially contends that the trial court erred in denying its motion for

relief from judgment without first conducting an evidentiary hearing. This

issue was discussed in Coulson v. Coulson (1983), 5 Ohio St.3d 12, 16, 5[Cite as RHDK Oil & Gas, L.L.C. v. Willowbrook Coal Co. , 2024

- Ohio

- 1134.]

OBR 73, 76

– 77, 448 N.E.2d 809, 812. In Coulson

, this court adopted the

following rule set forth in Adomeit v. Baltimore (1974), 39 Ohio App.2d 97,

105, 68 O.O.2d 251, 255, 316 N.E.2d 469, 476: “If the movant files a motion

for relief from judgment and it contains allegations of operative facts which

would warrant relief under Civil Rule 60(B), the trial court should grant a

hearing to take evidence and verify these facts before it rules on the

motion.”

Stollar v. TRST, LLC

, 5th Dist. Fairfield No. 2019 CA 00051, 2020

- Ohio

- 3041, 2020 WL

2563420, ¶ 23.

{¶41} The standard for when an evidentiary hearing on a Civ.R. 60(B) motion is

necessary is set forth in Cogswell v. Cardio Clinic of Stark County, Inc

., 5th Dist. Stark

No. CA

– 8553, 1991 WL 242070 (Oct. 21, 1991). Wells Fargo Bank v. Grutsch

, 5th Dist.

Delaware No. 14 CAE 100067, 2015

- Ohio

- 4721, 2015 WL 7153760, ¶ 53; NationStar

Mtge., L.L.C. v. Purnell

, 5th Dist. Fairfield No. 13

– CA

– 74, 2014

– Ohio

– 2824, ¶ 8. In

Cogswell

, this Court held under Civ.R. 60(B) that a hearing is not required unless there

exist issues supported by evidentiary quality affidavits. A movant for Civ. R. 60(B) must

submit factual material with its motion which demonstrates grounds which, if true, would

constitute a defense to the action. Merritt v. Sanbar

, LLC , 5th Dist. Fairfield No. 2021 CA

00029, 2022

- Ohio

- 2344, 2022 WL 2444466, ¶ 28 citing Matson v. Marks

, 32 Ohio App.2d

319, 327, 291 N.E.2d 491 (1972); Adomeit v. Baltimore

, 39 Ohio App.2d 97, 103, 316

N.E.2d 469 (1974). A trial court must hold an evidentiary hearing when the motion and

supporting evidence contain sufficient allegations of operative facts, which would support[Cite as RHDK Oil & Gas, L.L.C. v. Willowbrook Coal Co. , 2024

- Ohio

- 1134.]

a meritorious defense to the judgment. Cogswell; BancOhio National Bank v.

Schiesswohl

, 51 Ohio App.3d 130, 554 N.E.2d 1362 (9th Dist.1988).

{¶42} In its June 14, 2023 judgment entry, the trial court stated it did not hold an

evidentiary hearing because Willowbrook failed to meet the Cogswell standard to support

its allegation of a meritorious claim with evidentiary quality affidavits. Willowbrook argues

the trial court erred because it provided the trial court with factual information to support

its claims. In its motion for relief from judgment, Willowbrook referred the trial court to the

two affidavits of Paul Pullins. Willowbrook, however, did not attach the Paul Pullins

affidavits to its motion for relief from judgment. Instead, Willowbrook instructed the trial

court to look for the first Paul Pullins affidavit in its August 23, 2022 reply to its Civ.R. 70

motion where Willowbrook attached the August 19, 2022 affidavit of Paul Pullins.

Willowbrook then filed a second Paul Pullins affidavit on March 20, 2023, which upon

review of the filing, made no mention that the affidavit was being filed in support of

Willowbrook’s motion for relief from judgment.

{¶43} Willowbrook now asks this Court to revisit Cogswell and related case law to

reconsider whether a movant is required to support the assertion that it has a meritorious

claim or defense with affidavit

- quality evidence. Based on the procedural history of this

case, this Court declines to overturn years of precedence because Willowbrook failed to

meet established case law as to what materials are necessary to support a Civ.R. 60(B)

motion. This Court has consistently held that a trial court does not err in not holding an

evidentiary hearing when there were no supportive affidavits containing allegations of

operative fact that support a meritorious defense entitling appellant to an evidentiary

hearing. Stevens v. Stevens

, 5th Dist. Fairfield No. 16

- CA

- 17, 2016

- Ohio

- 7925, 2016 WL[Cite as RHDK Oil & Gas, L.L.C. v. Willowbrook Coal Co. , 2024

- Ohio

- 1134.]

6964184, ¶ 18 citing Chase Home Finance, LLC v. Lindenmayer

, 5th Dist. Licking No.

15

– CA

– 32, 016

– Ohio

– 1202; Capital One Bank (USA), N.A. v. King

, 5th Dist. Stark

No.2014CA00232, 2015

– Ohio

– 3600. As this Court has previously noted, “unsworn

allegations of operative facts contained in a motion for relief from judgment filed under

Civ.R. 60(B) or in a brief attached to the motion are not sufficient evidence upon which to

grant a motion to vacate judgment.” Blaney v. Kerrigan

, 5th Dist. Fairfield No. 12

– CA

– 86,

1986 WL 8646 (Aug. 4.1986), quoting East Ohio Gas v. Walker

, 59 Ohio App.2d 216, 394

N.E.2d 348 (8th Dist.1978). In its motion for relief from judgment, Willowbrook did not

provide the trial court with supportive affidavits containing allegations of operative fact

that supported its alleged meritorious claims entitling it to an evidentiary hearing. There

is no rule of law that requires the trial court to hunt through the record to find supporting

evidence on behalf of the Civ.R. 60(B) movant. We find no abuse of discretion by the trial

court in following established precedence as to the evidentiary standards for Civ.R. 60(B).

Civ.R. 60(B)(4)

{¶44} In their motion for relief from judgment, Willowbrook argues it should be

granted relief pursuant to Civ.R. 60(B)(4). The rule states that relief can be granted if, “the

judgment has been satisfied, released or discharged, or a prior judgment upon which it is

based has been reversed or otherwise vacated, or it is no longer equitable that the

judgment should have prospective application[.]” Wells Fargo Bank v. Grutsch

, 5th Dist.

Delaware No. 14 CAE 100067, 2015

- Ohio

- 4721, 2015 WL 7153760, ¶ 32. Civ.R. 60(B)(4)

“was designed to provide relief to those who have been prospectively subjected to

circumstances which they had no opportunity to foresee or control.” Jackson v. Jackson

,

5th Dist. Richland No. 12CA28, 2013

- Ohio

- 3521, 2013 WL 4126923, ¶ 30 quoting In re[Cite as RHDK Oil & Gas, L.L.C. v. Willowbrook Coal Co. , 2024

- Ohio

- 1134.]

Yates

, 4th Dist. Nos. 05CA19 and 05CA20, 2006

– Ohio

– 2761, ¶ 20, quoting Knapp v.

Knapp

, 24 Ohio St.3d 141, 146, 493 N.E.2d 1353 (1986). The rule was not designed to

relieve litigants of the consequences of their voluntary, deliberate choices. Beaver

Excavating Co. v. Twp. of Perry

, 5th Dist. Stark No. CA 8652, 1991 WL 302463 (Dec. 30,

1991), *2 citing Knapp at 145, 493 N.E.2d at 1357.

{¶45} Willowbrook contends it is entitled to relief from the August 20, 2020

Judgment Entry due to the intervening 2022 Pipeline Operations. It argues the August 20,

2020 Judgment Entry, which enforced the MSA /SIP and ordered the parties to sign the

January 2020 Documents, is no longer equitable that the judgment should have

prospective application. If Willowbrook signs the general release statement as stated in

the January 2020 Documents and July 5, 2022 Documents, Willowbrook states it will be

barred from seeking damages arising out of the 2022 Pipeline Operations.

{¶46} “On its face, the provisions of Civ.R. 60(B) apply only to relief from ‘a final

judgment, order, or proceeding.’ In other words, the rule is directed to judicial acts, not

acts by parties.” Carlson v. Cincinnati

, 1st Dist. Hamilton No. C

- 210238, 2022

- Ohio

- 1513,

2022 WL 1439512, ¶ 24. RHDK and Willowbrook have been working together in the oil

and gas industry since 1977. Since 2014, the parties have worked to unwind their joint

venture in the oil and gas industry, culminating in negotiations that produced the

MSA/SIP, the January 2020 Documents, the November 2021 Documents, and the July

5, 2022 Documents (which included Willowbrook’s version). The parties and the attorneys

in this case arguably know more about the oil and gas industry and their contractual

relationship than any expert in the field. One attorney stated at a hearing that this matter

was being heard before its third judge. For Willowbrook to argue that the 2022 Pipeline[Cite as RHDK Oil & Gas, L.L.C. v. Willowbrook Coal Co. , 2024

- Ohio

- 1134.]

Operations were completely unforeseeable, and it had no opportunity to control its 45

-

year contractual relationship with RHDK is disingenuous. We noted in RHDK I :

[ Willowbrook’s] apparent reticence to disclose their ideal resolution of the

dispute to the trial court is disturbing. While we have insufficient evidence

to conclude that [Willowbrook was] not acting in good faith to reach an

agreement, we can understand [RHDK’s] concern that [Willowbrook was]

invested in negotiations, but not settlement.

RHDK I

, 2021

- Ohio

- 1362, ¶ 31.

Civ.R. 60(B)(5)

{¶47} Civ.R. 60(B)(5) allows the trial court to relieve a party from a final judgment

for “any other reason justifying relief from the judgment.” Civ.R. 60(B)(5) operates as a

catch

- all provision and “reflects ‘the inherent power of a court to relieve a person from the

unjust operation of a judgment.’” Maggiore v. Barensfeld

, 5th Dist. Stark No.

2011CA00180, 2012

- Ohio

- 2909, 2012 WL 2415184, ¶ 35 citing Dutton v. Potroos

, 5th

Dist. Stark No. 2010CA00318, 2011

- Ohio

- 3646, 2011 WL 3057612, at ¶ 49. It is reserved

for “extraordinary and unusual case [s],” Myers v. Myers

, 9th Dist. Summit No. 22393,

2005

- Ohio

- 3800, 2005 WL 1763608, at ¶ 14, and “is not a substitute for the enumerated

grounds for relief from judgment [.]” Id

. It applies only where a more specific provision of

Civ.R. 60(B) does not apply. J.N. v. L.A

., 2022

- Ohio

- 974, 186 N.E.3d 350, ¶ 22 (5th Dist.)

citing Ogline v. Sam's Drug Mart, L.L.C

., 5th Dist. Stark No. 2013 CA 00154, 2014

- Ohio

2355, 2014 WL 2547765, ¶ 38 citing Strack v. Pelton

, 70 Ohio St.3d 172, 637 N.E.2d 914

(1994). We do not find Willowbrook raised extraordinary circumstances requiring relief

from the August 20, 2020 Judgment Entry.[Cite as RHDK Oil & Gas, L.L.C. v. Willowbrook Coal Co. , 2024

- Ohio

- 1134.]

{¶48} Civ.R. 60(B) is a procedural rule “requir[ing] the court to carefully consider

the two conflicting principles of finality and perfection.” Carlson v. Cincinnati

, 1st Dist.

Hamilton No. C

- 210238, 2022

- Ohio

- 1513, 2022 WL 1439512, ¶ 23 quoting Strack v.

Pelton

, 70 Ohio St.3d 172, 175, 637 N.E.2d 914 (1994), citing Knapp v. Knapp

, 24 Ohio

St.3d 141, 144

- 145, 493 N.E.2d 1353 (1986). The trial court appropriately balanced the

principles of finality and perfection by overruling Willowbrook’s motion for relief from the

August 20, 2020 Judgment Entry.

{¶49} Willowbrook’s first, second, and third Assignments of Error are overruled.

IV.

{¶50} Willowbrook contends in its fourth Assignment of Error that the trial court

erred in granting RHDK’s Civ.R. 70 motion that the parties execute the Settlement and

Release Agreement along with the ancillary documents set forth by RHDK with the non

substantive changes requested by Willowbrook.

{¶51} Civ.R. 70 provides, in pertinent part, that:

If a judgment directs a party to execute a conveyance of land, to transfer

title or possession of personal property, to deliver deeds or other

documents, or to perform any other specific act, and the party fails to comply

within the time specified, the court may, where necessary, direct the act to

be done at the cost of the disobedient party by some other person appointed

by the court, and the act when so done has like effect as if done by the

party.

{¶52} It is well

- established that courts have inherent power to enforce their final

judgments. Grande Voiture D'Ohio La Societe Des 40 Hommes Et 8 Chevaux v.[Cite as RHDK Oil & Gas, L.L.C. v. Willowbrook Coal Co. , 2024

- Ohio

- 1134.]

Montgomery Cnty. Voiture No. 34 La Societe Des 40 Hommes Et 8 Chevaux

, 2nd Dist.

Montgomery No. 29064, 2021

- Ohio

- 2429, 2021 WL 3012068, ¶ 19 citing Rieser v. Rieser

,

191 Ohio App.3d 616, 2010

- Ohio

- 6227, 947 N.E.2d 222, ¶ 19 (2d Dist.); City of Cleveland

v. Laborers Internatl. Union Local 1099

, 2018

- Ohio

- 161, 104 N.E.3d 890, ¶ 22 (8th Dist.);

Infinite Sec. Solutions, L.L.C. v. Karam Properties II, Ltd

., 143 Ohio St.3d 346, 2015

- Ohio

1101, 37 N.E.3d 1211, ¶ 27. Civ.R. 70 is a procedural rule “intended to provide as easy

and effective method as possible to carry out a court order for conveyance of land,

property or performance of another specific act.” Grande Voiture D'Ohio La Societe Des

40 Hommes Et 8 Chevaux

, 2021

- Ohio

- 2429, ¶ 19 citing Civ. R. 70, 1970 Staff Note.

{¶53} The Second District Court of Appeals provided a succinct explanation of

when Civ.R. 70 is appropriately utilized by the trial court:

“Civ.R. 70 gives a trial court the authority to enforce a previous court order

that required a specific act to be performed.” Alexander v. Urban

Communications Television Inc

., 2d Dist. Montgomery No. 18696, 2001 WL

896945, *2 (Aug. 10, 2001), citing Tessler v. Ayer

, 108 Ohio App.3d 47, 52,

669 N.E.2d 891, 895 (1st Dist.1995). The rule, which is rarely mentioned in

appellate decisions, “is reserved for particularly obstinate parties[.]” Tessler

at 52, fn. 3. See also Freeman v. Freeman

, 10th Dist. Franklin No.

07APF05

- 706, 1997 WL 781999, *2 (Dec. 16, 1997) (the purpose of Civ.R.

70 is to give the court power to deal with parties who refuse to obey specific

act orders).[Cite as RHDK Oil & Gas, L.L.C. v. Willowbrook Coal Co. , 2024

- Ohio

- 1134.]

Grande Voiture D'Ohio La Societe Des 40 Hommes Et 8 Chevaux v. Montgomery Cnty.

Voiture No. 34 La Societe Des 40 Hommes Et 8 Chevaux

, 2nd Dist. Montgomery No.

29064, 2021

- Ohio

- 2429, 2021 WL 3012068, ¶ 20.

{¶54} The trial court's August 20, 2020 Judgment Entry was a final judgment,

which the court was permitted to enforce. To that end, the trial court properly utilized

Civ.R. 70 to effectuate its order that the Settlement and Release Agreement along with

the ancillary documents set forth by RHDK with the non

- substantive changes requested

by Willowbrook reflected the documents contemplated by the trial court in its August 20,

2020 Judgment Entry.

{¶55} Willowbrook’s fourth Assignment of Error is overruled.

V. and VI.

{¶56} In its fifth and sixth Assignments of Error, Willowbrook contends the trial

court erred when it ordered the parties execute all documents on or before June 30, 2023

and if Willowbrook failed to execute all documents on or before June 30, 2023, RHDK

was authorized to designate a person of its choosing to execute all such documents.

{¶57} The trial court issued the June 30, 2023 deadline pursuant to its authority

under Civ.R. 70. Willowbrook contends the June 30, 2023 deadline conflicts with the

language of the Settlement and Release Agreement. Based on the factual and procedural

history of this case, we find no abuse of discretion for the trial court to utilize its authority

to enforce the August 20, 2020 Judgment Entry and set a specific deadline for the

resolution of this case.

{¶58} Civ.R. 70 states that if a judgment orders a party to perform a specific act

and the party “fails to comply within the time specified, the court may, where necessary,[Cite as RHDK Oil & Gas, L.L.C. v. Willowbrook Coal Co. , 2024

- Ohio

- 1134.]

direct the act to be done at the cost of the disobedient party by some other person

appointed by the court, and the act when so done has like effect as if done by the party.”

The trial court’s June 14, 2023 judgment entry stated:

Pursuant to Civ.R. 70, the Plaintiffs shall be authorized to designate an

individual of their choosing to execute all necessary documents should the

Defendants fail or refuse to sign such documents on or before June 30,

2023.

(Judgment Entry, June 14, 2023). In its order and pursuant to Civ.R. 70, the trial court

prospectively appointed a person to complete the act if the disobedient party failed to

comply. The court

- appointed person was to be of RHDK’s choosing to execute all

necessary documents should Willowbrook fail or refuse to sign such documents on or

before June 30, 2023.

{¶59} Willowbrook’s fifth and sixth Assignments of Error are overruled.[Cite as RHDK Oil & Gas, L.L.C. v. Willowbrook Coal Co. , 2024

- Ohio

- 1134.]

CONCLUSION

{¶60} The judgment of the Tuscarawas County Court of Common Pleas is

affirmed.

By: Delaney, J.,

Wise, P.J. and

Baldwin, J., concur.