[Cite as Woods v. Big Sky Energy, Inc., 2020-Ohio-5309.]

COURT OF APPEALS 

MUSKINGUM COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

DALE R. WOODS, ET AL., : JUDGES: 

 : Hon. William B. Hoffman, P.J. 

 Plaintiffs - Appellees : Hon. W. Scott Gwin J. 

 : Hon. Craig R. Baldwin, J. 

-vs- : 

 : 

BIG SKY ENERGY, INC., ET AL., : Case No. CT2020-0017 

 : 

 Defendants - Appellants : O P I N I O N 

 

CHARACTER OF PROCEEDING: Appeal from the Muskingum County 

Court of Common Pleas, Case No. 

CH2016-1061 

 

JUDGMENT: Affirmed in part; Reversed 

 and Remanded in part 

DATE OF JUDGMENT: November 16, 2020 

APPEARANCES: 

For Plaintiffs-Appellees For Defendants-Appellants 

W. EVAN PRICE, II GINO PULITO 

Law Office of W. Evan Price II, LLC Pulito and Associates, LLC

P.O. Box 20244 230 Third Street 

Columbus, Ohio 43220-0244 Elyria, Ohio 44035 
Muskingum County, Case No. CT2020-0017 2 

Baldwin, J.

{¶1} Defendants-appellants Big Sky Energy, Inc., Big Sky Petroleum, LLC and 

Robert Barr, in his individual capacity and dba Big Sky Petroleum, LLC appeal from the 

February 25, 2020 Judgment Entry of the Muskingum County Court of Common Pleas. 

STATEMENT OF THE FACTS AND CASE 

{¶2} The facts, as set forth in our Opinion in Woods, et al. v. Big Sky Energy, et 

al, 5th Dist. Muskingum No. CT2017-0031, 2019 -Ohio- 554, are as follows. 

{¶3} On May 22, 1968, appellees' predecessor in title, Russell and Marjorie 

Sandel, granted an oil and gas lease to Weaver Oil and Gas Corporation (hereinafter the 

“Weaver Lease”). The Weaver Lease had a primary term of ten years, and provided in 

paragraph seven as follows: 

If, after the expiration of the primary term of this lease, production on 

the leased premises shall cease, this lease shall not terminate, provided 

that Lessee commences operations for drilling, reworking, plugging back, 

or deepening a well within 60 days from such cessation, and this lease shall 

remain in force during the prosecution of such operations or additional 

drilling, reworking, plugging back, or deepening operations commenced 

while such operations are in progress or within 30 days after the cessation 

thereof, and if production results therefrom, then until it is marketed and so 

long as production continues. 

{¶4} The Weaver Lease was subsequently assigned several times, including an 

assignment to Dover Atwood Corporation. Dover Atwood Corporation assigned and sold 
Muskingum County, Case No. CT2020-0017 3 

its interest in the Weaver Lease to appellant Barr on July 11, 2001, who used appellant 

Big Sky Energy to operate the well. 

{¶5} Marjorie Sandel conveyed the property subject to the Weaver Lease to her 

daughter, Marlene Woods, in the 1990s. Robert Woods acquired the property from the 

estate of his wife, Marlene Woods, in 2008. Robert Woods conveyed the property to his 

son and his wife, appellees herein, on July 14, 2008. 

{¶6} Subsequent to the transfer, appellee Dale Woods began trying to obtain 

production records from the well from appellants, who failed to produce records. After 

years of struggling to obtain information regarding the well and the Weaver Lease, 

appellees filed the instant action in the Muskingum County Common Pleas Court on May 

11, 2016, including causes of action for quiet title, conversion, unjust enrichment, 

trespass, breach of contract, breach of implied covenant to reasonably develop, breach 

of implied covenant to explore further, and declaratory judgment. 

{¶7} The case proceeded to bench trial. At trial, appellees elected not to proceed 

on the counts for breach of the Weaver Lease, and the implied covenants thereunder and 

the trial court dismissed these counts. The trespass claim also was dismissed. 

{¶8} At trial, appellees presented evidence the well ceased production in 

December 2015, and had not resumed operations. Production ceased because the Ohio 

Department of Natural Resources (ODNR) refused to approve a bond from appellants' 

preferred insurance company. Appellants were ordered by ODNR to stop production on 

all wells until a replacement bond was posted. Appellant Barr admitted appellant Energy 

could have sought the requested bond from another insurer, but refused to do so as a 

matter of principle because Barr disagreed with ODNR's decision. 
Muskingum County, Case No. CT2020-0017 4 

{¶9} The order from ODNR barring appellant Energy from operating under the 

former bond remained in litigation when trial commenced in the instant case. Appellant 

Barr further admitted failing to notify appellees production had ceased on the well. 

{¶10} Appellants failed to produce the requested production records on the well 

until ordered to do so on March 7, 2017, during a status conference in the instant litigation 

on a motion to compel. The records demonstrated discrepancies between the amount of 

royalties paid and the amount of royalties due based on revenue generated from the well. 

{¶11} Following trial, the trial court found appellants liable for conversion of 

royalties in the amount of $ 28,066.39. Because of appellants' attempts to conceal 

records which would demonstrate their failure to pay the full amount of royalties due 

appellees, the court found an award of punitive damages justified, and awarded punitive 

damages in the amount of $ 28,066.39. The court declared the Weaver Lease terminated 

by its terms for failure of production effective March 1, 2016, and quieted title in appellees 

as of March 1, 2016. The court dismissed all remaining causes of action set forth in the 

complaint. 

{¶12} Appellants then appealed from the April 20, 2017 judgment of the court, 

raising the following assignments of error on appeal error: 

{¶13} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW AND FACT 

WHICH WAS UNSUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE BY

TERMINATING THE WEAVER OIL AND GAS LEASE BASED UPON 

NONPRODUCTION WHEN THE LEASE INCLUDED A FORCE MAJEURE CLAUSE 

WHICH EXPRESSLY PROHIBITED SUCH TERMINATION.” 
Muskingum County, Case No. CT2020-0017 5 

{¶14} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW AND FACT 

WHEN IT AWARDED COMPENSATORY DAMAGES IN THE AMOUNT OF $ 28,066.39 

AND PUNITIVE DAMAGES IN THE AMOUNT OF $ 28,066.39.” 

{¶15} This Court, as memorialized in an Opinion filed on February 6, 2019, in 

Woods, et al v. Big Sky Energy, et al, 5th Dist. Muskingum No. CT2017-0031, 2019 -

Ohio- 554, affirmed the judgment of the trial court in part and reversed and remanded in 

part as to damages only. This Court, in our Opinion, stated, in relevant part, as follows: 

{¶16} “The measure of damages in a conversion action is the value of the 

converted property at the time it was converted. United Bank, Div. of the Park Natl. Bank 

v. Expressway Auto Parts, Ltd., 5th Dist. No. 15CA51, 2015-Ohio-4554, 49 N.E.3d 776, 

¶ 34; Congress Lake Club v. Witte, 5th Stark App. No. 2007CA00191, 2008-Ohio-6799, 

2008 WL 5340219, ¶ 66. 

{¶17} “The trial court awarded compensatory damages for conversion in the 

amount of $ 28,066.39, and awarded punitive damages in the same amount. However, 

we cannot determine from the record how the trial court arrived at this figure for 

compensatory damages. The amount of compensatory damages appears to be derived 

from Appellees' Summary Exhibit No. 1, which shows the amount of lost revenue, not 

converted royalties, for the time period. In explaining this damage figure, counsel for 

Appellees stated in closing argument: 

So what this does is, it goes back four years, to June of 2012, adds 

up the oil revenue – gas revenue, the oil revenue, and then it subtracts out 

the royalties that would have been paid on that – on the assumption that all 

those royalties were indeed paid during that period. I don't think that is an 
Muskingum County, Case No. CT2020-0017 6 

accurate statement, but again, for purposes of calculating the damages, that 

gives us 28,000... 

THE COURT: Is the $ 20,000, $ 28,066.39, is that the exact amount? Is that 

the number you're going— 

MR. PRICE: Yes. That is the first number. That's for the – the lost revenue. 

Tr. 239. 

The trial court's damage award appears to be based on revenue from the 

well, rather than the correct measure of damages for conversion, which is 

the amount of royalties owed on that revenue converted by Appellants in 

this case. Appellees are not entitled to revenue from the well, but rather for 

the converted royalties only. We therefore remand this case to the trial court 

to determine damages in an amount not exceeding the royalties due 

pursuant to the lease, during the time period not barred by the statute of 

limitations for conversion, up to March 1, 2016 (the date the lease was 

terminated), less any royalties found actually paid pursuant to the lease for 

that time period. Because the court based its award of punitive damages on 

an incorrect measure of compensatory damages, the trial court must also 

adjust the punitive damage award according to the new calculation of 

damages.” 

Id. at paragraphs 20-23 (footnotes omitted). We and reversed in part as to damages [for 

conversion] only remanded for a “determination of damages , consistent with this opinion.” 

Id. at paragraph 25. 
Muskingum County, Case No. CT2020-0017 7 

{¶18} On remand, the parties filed briefs addressing the issue of damages. 

Pursuant to a Judgment Entry filed on February 25, 2020, the trial court again found that 

the Weaver Lease expired on or about March 1, 2016 due to lapse in production and held 

that the Woods’ title to the property was quieted with respect to the Weaver Lease. The 

trial court entered judgment in favor of appellees and against appellants on the conversion 

claim in the amount of $28,066.39 for compensatory damages. The court also awarded 

appellees $28,066.39 for punitive damages and for all court costs and ordered that 

appellants were jointly and severally liable to appellees. The trial court also entered 

judgment in favor of appellees and against appellants on the unjust enrichment claim in 

the amount of $28,066.39 for compensatory damages and for all court costs. The trial 

court held that appellants were jointly and severally liable. The remaining counts were 

dismissed. 

{¶19} Appellants now appeal from the trial court’s February 25, 2020 Judgment 

Entry, raising the following assignments of error on appeal: 

{¶20} “I. THE TRIAL COURT LACKED THE AUTHORITY TO REVERSE ITS 

OWN PRIOR JUDGMENT DISMISSING WOODS’ CLAIM FOR UNJUST ENRICHMENT 

AND GRANTING WOODS’ AN AWARD OF DAMAGES WHILE ON REMAND FROM 

THE APPELLATE COURT.” 

{¶21} “II. THE TRIAL COURT’S CALCULATION OF DAMAGES WAS 

UNSUPPORTED BY THE EVIDENCE AND CONTRARY TO THIS COURT’S PRIOR 

DECISION AND EXPLICIT INSTRUCTIONS.” 

{¶22} “III. THE TRIAL COURT WAS BARRED FROM ORDERING APPELLANT 

ROBERT BARR, INDIVIDUALLY, TO PAY ANY DAMAGES AS A RESULT OF HIS 
Muskingum County, Case No. CT2020-0017 8 

PERSONAL BANKRUPTCY PURSUANT TO CHAPTER 7 OF TITLE 11 OF THE 

UNITED STATES CODE.” 

I 

{¶23} Appellants, in their first assignment of error, argue that the trial court, on 

remand, had no authority to award damages to appellees on their unjust enrichment 

claim. We agree. 

{¶24} The law of the case “doctrine provides that the decision of a reviewing court 

in a case remains the law of that case on the legal questions involved for all subsequent 

proceedings in the case at both trial and reviewing levels.” Nolan v. Nolan, 11 Ohio St.3d 

1, 3, 462 N.E.2d 410 (1984). “This is necessary to ensure consistency of results in a case, 

to avoid endless litigation by settling the issues, and to preserve the structure of superior 

and inferior courts as designed by the Ohio Constitution.” Id. The doctrine prevents lower 

courts from disregarding the mandate of a superior court in a prior appeal in the same 

case” Id. Likewise, it prohibits litigants from “mak[ing] new arguments to the trial court on 

remand that were raised or could have been raised on the first appeal.” Neiswinter v. 

Nationwide Mut. Fire Ins. Co., 9th Dist. Summit No. 23648, 2008–Ohio–37 at paragraph 

10; Johnson v. Johnson, 5th Dist. Stark No. 2016CA00060, 2016–Ohio–7861 at 

paragraph 14. Furthermore, “[a] trial court is without authority to extend or vary the 

mandate given by the appellate court.” Scott v. Ohio Dept. of Rehab. & Corr., 10th Dist. 

Franklin No. 14AP-105, 2014-Ohio-2796, ¶ 12, citing State v. Harper, 10th Dist. No. 

06AP–733, 2007–Ohio–2590, ¶ 13. 
Muskingum County, Case No. CT2020-0017 9 

{¶25} In the case sub judice, the trial court, in its April 20, 2017 Judgment Entry, 

dismissed the unjust enrichment claim (Count III) holding that “Woods failed to establish 

that Defendants were unjustly enriched and any damages would be duplicative of the 

amount awarded on their conversion claim.” Appellants then appealed from such 

Judgment Entry and this Court, as is stated above, affirmed in part, but reversed and 

remanded in limited part, and remanded for a “determination of damages, consistent with 

this opinion.” The trial court, on remand, awarded damages for unjust enrichment. 

{¶26} As noted by appellants, “[t]he issue of whether Woods proved their claim 

for unjust enrichment was settled by the time the case returned to the trial court on 

remand.” Pursuant to Nolan, supra., the law of the case doctrine prevented the trial court 

from reversing its own prior judgment dismissing the unjust enrichment claim and from 

revisiting the issue of damages for unjust enrichment on remand. 

{¶27} Appellants’ first assignment of error is, therefore, sustained.

II 

{¶28} Appellants, in their second assignment of error, contend that the trial court’s 

award of damages was unsupported by the evidence and contrary to this Court’s prior 

decision and explicit instructions. We agree. 

{¶29} “Because the award of damages is a discretionary matter, we will not 

reverse a trial court’s decision regarding its determination of damages absent a showing 

that the trial court abused its discretion.” Reinbolt v. Kern, 183 Ohio App.3d 287, 2009-

Ohio-3492, 916 N.E.2d 1100, ¶ 38 (6th Dist.) citing Roberts v. United States Fid. & Guar. 

Co., 75 Ohio St.3d 630, 364, 665 N.E.2d 664 (1996). “An abuse of discretion occurs only 
Muskingum County, Case No. CT2020-0017 10 

if the court renders an unreasonable, arbitrary, or unconscionable judgment.” Id., citing 

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). 

{¶30} As is stated above, this Court, in our February 6, 2019 Opinion in Woods v.

Big Sky Energy, et al, 5th Dist. Muskingum No. CT2017-0031, 2019 -Ohio- 554, stated, 

in relevant part, as follows: 

The trial court's damage award appears to be based on revenue from 

the well, rather than the correct measure of damages for conversion, which 

is the amount of royalties owed on that revenue converted by Appellants in 

this case. Appellees are not entitled to revenue from the well, but rather for 

the converted royalties only. We therefore remand this case to the trial court 

to determine damages in an amount not exceeding the royalties due 

pursuant to the lease, during the time period not barred by the statute of 

limitations for conversion, up to March 1, 2016 (the date the lease was 

terminated), less any royalties found actually paid pursuant to the lease for 

that time period. Because the court based its award of punitive damages on 

an incorrect measure of compensatory damages, the trial court must also 

adjust the punitive damage award according to the new calculation of 

damages. 

Id. at paragraph 23. 

{¶31} On remand, the trial court awarded appellees $28,066.39 in compensatory 

damages and $28,066.39 in punitive damages for conversion. Such figure represented 

the net revenue and not the converted royalties. We find that the trial court failed to follow 

the mandate of this Court in determining and ordering damages. As noted by appellants, 
Muskingum County, Case No. CT2020-0017 11 

pursuant to this Court’s prior Opinion, “the trial court was limited to awarding damages 

equal to converted royalties, not net revenue.” Appellants are entitled to “damages in an 

amount not exceeding the royalties due pursuant to the lease, during the time period not 

barred by the statute of limitations for conversion, up to March 1, 2016 ( the date that the 

lease was terminated), less any royalties found actually paid pursuant to the lease for that 

time period.” Id at paragraph 23.1

{¶32} Appellants’ second assignment of error is, therefore, sustained. 

III 

{¶33} Appellants, in their third assignment of error, maintain that the trial court 

was barred from ordering appellant Robert Barr, individually, to pay any damages as a 

result of his personal bankruptcy. We disagree. 

{¶34} Appellant Robert Barr filed a Chapter 7 personal bankruptcy in the United 

States District Court for the Southern District of Ohio on or about December 15, 2017. At 

the time, the first appeal in this case was pending. This Court, upon being notified of the 

bankruptcy, closed the case due to the bankruptcy stay. Appellant Barr received his 

discharge on May 16, 2018. Upon notice of the conclusion of the bankruptcy, this Court, 

on appellants’ request, set the matter for oral argument on January 17, 2019. 

{¶35} After the bankruptcy stay was lifted, appellant Barr never sought dismissal 

of the personal judgment against him, never sought to amend his answer on remand to 

assert bankruptcy as an affirmative defense pursuant to Civ.R. 8(C) and never sought a 

ruling on whether it applied to the damages awarded in this case. We agree with appellees 

that there is no record for this Court to examine. 

 

1 We note that pursuant to R.C. 2315.21(D), any award of punitive damages is limited to two times the 

amount of compensatory damages. 
Muskingum County, Case No. CT2020-0017 12 

{¶36} We further note that the trial court, as memorialized in a Judgment Entry 

filed on October 1, 2018, held that a garnishment hearing would go forward because 

“Defendant failed to provide evidence that this debt was discharged in bankruptcy.” We 

concur. 

{¶37} Appellants’ third assignment of error is, therefore, overruled.

{¶38} Accordingly, the judgment of the Muskingum County Court of Common 

Pleas is affirmed in part and reversed and remanded in part for a determination of 

damages for conversion, consistent with this Opinion. 

By: Baldwin, J. 

Hoffman, P.J. and 

Gwin, J. concur.