[Cite as Wildcat Drilling, L.L.C. v. Discovery Oil & Gas, L.L.C., 2022-Ohio-1125.]

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT

MAHONING COUNTY

WILDCAT DRILLING, LLC,

Plaintiff-Appellee,

v.

DISCOVERY OIL AND GAS, LLC,

Defendant-Appellant.

O P I N I O N A N D J U D G M E N T E N T R Y

Case No. 21 MA 0070

Civil Appeal from the

Court of Common Pleas of Mahoning County, Ohio

Case No. 15 CV 1959

BEFORE:

Carol Ann Robb, Gene Donofrio, David A. D’Apolito, Judges.

JUDGMENT:

Affirmed.

Atty. Molly K. Johnson, Johnson and Johnson, 12 W. Main Street, Canfield, Ohio, 44406 

for Plaintiff-Appellee and

Atty. David A. Detec, Atty. Thomas F. Hull II, Atty. Karly B. Johnson, Manchester, Newman 

& Bennett, LPA, The Commerce Building, Atrium Level Two, 201 E. Commerce Street, 

Youngstown, Ohio 44503 for Defendant-Appellant.
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Case No. 21 MA 0070

Dated: March 31, 2022

Robb, J.

{¶1} Defendant-Appellant Discovery Oil and Gas, LLC appeals the decision of the 

Mahoning County Common Pleas Court granting summary judgment for Plaintiff-Appellee 

Wildcat Drilling, LLC. In a prior appeal of this case, we applied common law indemnification 

requirements and held Discovery Oil was not entitled to indemnification for a fine paid to 

the Ohio Department of Natural Resources (ODNR) for brine use during drilling because 

Discovery Oil failed to provide Wildcat Drilling notice or an opportunity to defend before 

settling with ODNR. 

{¶2} The Ohio Supreme Court remanded to the trial court with instructions to 

determine if the contract “evinces a clear intent to abrogate the common-law” requirements 

set forth in Globe Indemn. Co. v. Schmitt, 142 Ohio St. 595, 53 N.E.2d 790 (1944). On 

remand, the trial court answered this question in the negative and thus concluded 

Discovery Oil was not entitled to contractual indemnification for the fine. In the present 

appeal, Discovery Oil claims the parties intended to abrogate the common law 

indemnification requirement of notice before settlement and makes other arguments that 

are not relevant to the remanded issue. For the following reasons, the trial court’s judgment 

is affirmed.

STATEMENT OF THE CASE

{¶3} Through a December 19, 2014 contract, Discovery Oil hired Wildcat Drilling 

to drill a well in Stark County beginning on December 31, 2014. Discovery Oil was to pay 

any invoice within ten days or notify Wildcat Drilling of any dispute within five days and 

timely pay undisputed portions of the invoice. The contract imposed indemnification 

obligations on Wildcat Drilling for fines and for other liabilities arising out of certain 

instances of pollution or contamination.

{¶4} In early January of 2015, an ODNR inspector determined brine water was 

illegally used in the drilling operation. Discovery Oil thereafter received a compliance 

notice but did not inform Wildcat Drilling due to a belief Wildcat Drilling’s involvement would
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“escalate tensions with [ODNR] and be counter-productive to negotiating a favorable 

settlement”). (Def. S.J. Mot., Ellenis Affidavit).

{¶5} On February 13, 2015, Wildcat Drilling issued an invoice for $190,350.37. 

On March 3, 2015, Discovery Oil attended a settlement meeting with ODNR (unbeknownst 

to Wildcat Drilling) and agreed to pay a $50,000 fine. Wildcat Drilling learned of the issue 

weeks later. Discovery Oil refused to pay any part of the invoice until Wildcat Drilling 

agreed to indemnify it for the fine, but this request was refused by Wildcat Drilling.

{¶6} On July 27, 2015, Wildcat Drilling filed a breach of contract complaint against 

Discovery Oil for failing to pay the invoice. Discovery Oil’s answer raised a set-off defense 

(based on indemnification for the fine paid to ODNR and attorneys’ fees incurred in 

responding to ODNR’s compliance notice). Discovery Oil’s counterclaim alleged breach of 

contract (regarding the clauses on indemnification and compliance with all laws) and set 

forth a claim of civil liability for criminal conduct under R.C. 2307.60 and R.C. 2307.61. 

{¶7} Both parties filed a summary judgment motion. In pertinent part, Discovery 

Oil said it was entitled to contractual indemnification while Wildcat Drilling emphasized the 

failure to provide notice of the ODNR compliance proceedings so they would have an 

opportunity to defend against the fine (and claimed the amount of the settlement was 

unreasonable). 

{¶8} On January 5, 2017, the trial court granted summary judgment in favor of 

Wildcat Drilling on the unpaid invoice and granted summary judgment to Discovery Oil for 

indemnification. Discovery Oil was ordered to pay $190,350.37 with credit for the 

indemnified amount (the $50,000 fine plus $14,150.09 for expenses incurred in the 

compliance proceedings) for a total judgment of $126,200.28 (with prejudgment interest 

from February 23, 2015). 

{¶9} Both parties appealed to this court, and the appeals were consolidated. 

Discovery Oil filed four assignments of error, one of which argued the trial court should 

have allowed the statutory claim to proceed as they demonstrated Wildcat Drilling’s civil 

liability for a criminal act. As to the appeal by Discovery Oil, this court overruled the 

assignments of error and affirmed the summary judgment in favor of Wildcat Drilling. 

Wildcat Drilling, LLC v. Discovery Oil & Gas, LLC, 2018-Ohio-4015, 121 N.E.3d 65, ¶ 52 

(7th Dist.). 
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{¶10} Wildcat Drilling’s assignment of error contested the trial court’s order to 

indemnify Discovery Oil for the fine because they were not provided notice before the 

settlement meeting. They argued this deprived them of the opportunity to defend against 

an unreasonable agreed fine, citing the requirements set forth in the Supreme Court’s 

Globe case. Discovery Oil responded by arguing the Globe requirements applied to 

common law indemnification, not contractual indemnification. 

{¶11} We concluded Discovery Oil was not entitled to indemnification because 

Wildcat Drilling “was not notified of the ODNR meeting or given the opportunity to appear 

at the meeting.” Id. at ¶ 69. As to Wildcat Drilling’s appeal, we reversed the summary 

judgment and modified the damage award to eliminate the credit for indemnification. Id. at 

¶ 71. Discovery Oil appealed our December 28, 2018 decision to the Ohio Supreme Court. 

Supreme Court Remand

{¶12} The Supreme Court accepted the following proposition of law: 

“Contractually-negotiated indemnification clauses are not subject to the common law Globe

indemnification requirements.” Wildcat Drilling, LLC v. Discovery Oil & Gas, LLC, 164 Ohio 

St.3d 480, 2020-Ohio-6821, 173 N.E.3d 1156, ¶ 10. The issue before the Court was said 

to be whether the Globe requirements (for determining indemnification rights after a 

settlement without the indemnitor's involvement) “apply when the parties' rights are 

governed by a contract that includes an indemnification provision.” Id. at ¶ 11. 

{¶13} In the cited Globe case, the Court observed an indemnitee’s voluntary 

payment after a settlement does not negate the right to indemnification if: (1) proper and 

timely notice was given to the indemnitor; (2) the indemnitor was legally liable to respond; 

and (3) the settlement was fair and reasonable. Globe Indemn. Co. v. Schmitt, 142 Ohio 

St. 595, 53 N.E.2d 790 (1944). The Supreme Court applied the requirements in later cases 

and now considers them “common-law requirements in Ohio.” Wildcat Drilling, 164 Ohio 

St.3d 480 at ¶ 13 (expressed in the lead opinion and recognized in the third opinion). 

{¶14} As reviewed in more detail below, the resulting Supreme Court opinions in 

Wildcat Drilling were split along various lines: (1) lead opinion where three justices 

reversed and remanded to trial court with instructions; (2) dissenting in part but also 

concurring in judgment only as this justice wished to remand on a different issue; (3) 

dissenting opinion where two justices wanted to reverse and allow indemnification; and (4) 
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dissenting opinion where one justice wanted to affirm our decision finding there was no 

right to indemnification in this case. Four justices agreed the Globe requirements may 

apply to contractual indemnification depending on the language in the agreement. Id. at ¶ 

13 (the lead opinion, where three justices said the intent to abrogate the common law must 

be clear), ¶ 44 (the fourth opinion, where a justice said the intent to abrogate the common 

law must be done “expressly, not impliedly”).

{¶15} The lead opinion concluded a contractual indemnification clause in a contract 

does not abrogate the common law requirements unless the intent to do so is “clearly 

indicated.” Id. at ¶ 14. “If the language used in the parties’ contract evinces a clear intent 

to abrogate the common-law Globe Indemn. Co. requirements, the contract should be 

applied as written and the indemnitor must indemnify the indemnitee under the terms of 

the agreement.” Id. at ¶ 14. These justices explained this does not mean the contract 

must contain an “explicit rejection of the common law” in order to abrogate the common 

law set forth in Globe. Id. at ¶ 16 (and this does not mean the common law can supplant 

negotiated terms). They rejected the third opinion’s assumption the parties intended to 

abrogate the common law from the mere existence of a contractual indemnification clause. 

Id.

{¶16} As to the contract at issue, the lead opinion made the following observation: 

“The contract here does not say unequivocally that Wildcat and Discovery intended to 

abrogate Ohio's common-law indemnification requirements. Nor does it say that Discovery 

can voluntarily settle a claim without first giving Wildcat notice of the claim or that Discovery 

can settle a claim for any amount it chooses, even if that amount is unreasonable.” Wildcat 

Drilling, 164 Ohio St.3d 480 at ¶ 15. However, the opinion then said “talismanic or magical 

language” is not required in order to abrogate the common law because the parties’ intent 

is determined by the contractual language. Id. These justices declined to decide in the 

first instance whether the contract here contained a clear intent to abrogate the common 

law. Id.

{¶17} In reversing our decision applying Globe and remanding to the trial court, the 

lead opinion concluded: 

Here, no court has analyzed the parties' contract to determine if it evinces a 

clear intent to abrogate the common-law Globe Indemn. Co. requirements.
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The trial court's judgment entry contains no analysis on that issue. The trial 

court simply concluded that Discovery is entitled to indemnification. The court 

of appeals concluded that the Globe Indemn. Co. requirements apply 

regardless of the terms of the parties' contract. We decline to conduct that 

analysis in the first instance and limit our review to the proposition of law that 

we accepted. We remand the matter to the trial court for further proceedings 

so that it may consider whether the parties intended to abrogate the commonlaw requirements on indemnification.

Because the Seventh District Court of Appeals applied the Globe Indemn. 

Co. requirements here without considering whether the parties abrogated 

those requirements in their contract, we reverse its judgment. Because no 

court has interpreted the parties' contract to determine if it expresses a clear 

intent to abrogate the common-law Globe Indemn. Co. requirements, we 

remand this matter to the trial court for further proceedings.

Wildcat Drilling, 164 Ohio St.3d 480 at ¶ 17-18.

{¶18} The second opinion dissented claiming Globe was an inapplicable tort 

opinion and the requirements listed were mere “concluding observations” which constituted 

dicta and which did not cover an express indemnification clause. Id. at ¶ 19, 23 (Kennedy, 

J.). Yet this justice also concurred in judgment only as she wanted to reverse and remand 

on a different issue. Id. at ¶ 19-31. 

{¶19} In the third opinion, two justices opined, “the requirements set forth in Globe 

Indemn. Co. do not apply when the parties' rights are governed by an express 

indemnification provision in a contract, as the inclusion of such a provision is a clear intent 

to derogate from the common law.” Id. at ¶ 40 (Fischer, J.) (noting the parties did not raise 

an ambiguous or unlawful contract). They believed our decision should be reversed and 

Wildcat Drilling should be ordered to indemnify Discovery Oil for the fine due to the 

existence of an indemnification clause. Id. at ¶ 41.

{¶20} The final opinion voted to affirm our decision finding Wildcat Drilling was not 

liable for indemnification under Globe. Id. at ¶ 43-45 (Donnelly, J.). This justice said Globe

applied to indemnification clauses unless the contract “expressly” announced those 
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requirements were overridden. Id. at ¶ 44 (disagreeing with the lead opinion’s instruction 

that a clear intent to abrogate can be implied). 

After the Remand

{¶21} Wildcat Drilling filed a motion for summary judgment on remand, stating the 

narrow issue before the trial court was whether the contract expressed a clear intent to 

abrogate the common law requirements in Globe. Wildcat Drilling urged the contractual 

language did not express such intent. It was noted the contract required Wildcat Drilling to 

defend and hold Discovery Oil harmless from claims, but it would be impossible to defend 

Discovery Oil without being provided with notice before a settlement. It was also pointed 

out that this court already found Discovery Oil failed to provide notice, which was not 

challenged in the Supreme Court, citing Wildcat Drilling, 7th Dist. No. 17 MA 0018 at ¶ 64, 

69.

{¶22} Discovery Oil’s response agreed the remand was to determine if there was 

clear intent in the contract to abrogate the common law Globe requirements. Discovery 

Oil claimed the Supreme Court did not decide the issue because there were still factual 

issues in the case. Even if Globe applied, they alternatively claimed there were genuine 

issues of material fact as to: whether the common law notice requirement was satisfied; 

whether Wildcat Drilling is civilly liable for criminal conduct and thus for statutory damages 

due to an intervening decision; and whether there should be ramifications where it had 

been discovered (during a suit pending in another county) that a company related to 

Wildcat Drilling was holding Discovery Oil’s other funds. It was also claimed Wildcat 

Drilling’s motion for summary judgment on remand was improper as it lacked citations to 

the record and was accompanied by a deficient affidavit.

{¶23} On June 30, 2021, the trial court issued an entry responding to the Supreme 

Court’s remand. The court concluded the contractual language did not evince a clear intent 

to abrogate the common law requirements in Globe. As the common law notice 

requirement applied, the court granted summary judgment to Wildcat Drilling on Discovery 

Oil’s indemnification claim. Discovery Oil filed the within appeal, setting forth five 

assignments of error.

ASSIGNMENT OF ERROR 1: NO CLEAR INTENT TO ABROGATE

{¶24} Discovery Oil’s first assignment of error provides:
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Case No. 21 MA 0070

“The trial court erred in granting summary judgment where there was a genuine 

issue of material fact as to whether the parties’ contractual language evinced an intent to 

abrogate the common law indemnification requirements.”

{¶25} The parties agree the Ohio Supreme Court remanded for the trial court to 

determine whether the contract language evinces a clear intent to abrogate the common 

law indemnification requirements in Globe. This is a legal question. Nevertheless, 

Discovery Oil says it is a factual question and begins by arguing reasonable minds could 

come to different conclusions as to whether the contractual language evinced an intent to 

abrogate the common law indemnification requirement, suggesting we should resolve 

doubts in favor of the non-movant under the standard summary judgment test applicable 

to genuine issues of material fact. 

{¶26} However, this is a misinterpretation of the law as applicable to the test 

Discovery Oil acknowledges should be applied. If (as Discovery admits) the common law 

indemnification requirements are inapplicable only when a contract lacks a clear intent to 

abrogate them, then the common law requirements must be applied when the contract 

does not contain a clear intent to abrogate them. Therefore, in cases where the intent to 

abrogate is not clear in the contractual language, the case does not proceed to trial on the 

question of whether the parties truly intended to abrogate the common law requirements. 

{¶27} Discovery Oil says if there were no genuine issues of material fact as to the 

contract language, then the Supreme Court would have made the legal decision itself 

rather than remanding. However, the lead opinion of three justices explained, “no court 

has analyzed the parties’ contract to determine if it evinces a clear intent to abrogate the 

common-law Globe Indemn. Co. requirements.” Wildcat Drilling, 164 Ohio St.3d 480 at ¶ 

17.1 The justices believed the trial court assumed indemnification was automatic due to 

the indemnification clause (an assumption adopted by the third opinion) while the appellate 

court assumed the Globe requirements automatically applied to contractual indemnification 

(without analyzing whether the contract contained a clear intent to abrogate those 

requirements). See id. at ¶ 7-8, 17-18.

1 We note, as reviewed above in setting forth the Supreme Court opinions, only one justice opined there 

existed a genuine issue of material fact, but this was on a different issue, which would have favored Wildcat 

Drilling. The remaining three justices would not have remanded the case at all (with two voting to reverse 

and one voting to affirm). 
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{¶28} When remanding for the trial court to consider whether the language used in 

the contract shows the parties clearly intended to abrogate the Globe common law 

indemnification requirements, the lead opinion specifically said the justices “decline to 

conduct that analysis in the first instance.” Id. at ¶ 14-15, 17. Contrary to Discovery Oil’s 

suggestions, it is not unusual for the Supreme Court to accept a case for review in order to 

issue a legal holding that will apply to all cases but refuse to apply the announced law to 

the contract (or statute) in the case before it where the lower courts did not do so. 

{¶29} The facts to be considered here are the words in the contract that are already 

in the record. Discovery Oil says reasonable minds could differ on the contractual 

language. However, contractual language that is reasonably susceptible to more than one 

meaning is ambiguous and does not show clear intent. See generally Faruque v. Provident 

Life & Acc. Ins. Co., 31 Ohio St.3d 34, 38, 508 N.E.2d 949 (1987) (contractual language 

that is reasonably susceptible to more than one meaning is ambiguous); Beverly v. Parilla, 

7th Dist. No. 04 CO 55, 165 Ohio App.3d 802, 2006-Ohio-1286, 848 N.E.2d 881, ¶ 24 

(“language is ambiguous if it is unclear, indefinite, and reasonably subject to dual 

interpretations or is of such doubtful meaning that reasonable minds could disagree as to 

its meaning”). 

{¶30} Again, the acknowledged remand instruction was that if the language does 

not show a clear intent to abrogate the common law requirements, then those requirements 

must be applied to the indemnification rights in the agreement. Wildcat Drilling, 164 Ohio 

St.3d 480 at ¶ 1, 14, 17-18, citing Cheatham I.R.A. v. Huntington Natl. Bank, 157 Ohio 

St.3d 358, 2019-Ohio-3342, 137 N.E.3d 45, ¶ 30 (“Parties to a contract may include terms 

in derogation of common law, * * * but the intent to do so must be clearly indicated”).2

{¶31} We turn to the language on indemnification reviewed by the parties. 

Paragraph 17 of the contract is titled “Responsibility for Loss or Damage.” The following 

“responsibility for pollution and contamination” is set forth thereunder: 

[Wildcat Drilling] Liability – [Wildcat Drilling] shall assume full responsibility 

for and shall defend, indemnify, and hold [Discovery Oil] and its joint owners 

2 This differs from the general rule that extrinsic evidence can be used if the intent is unclear. See Graham 

v. Drydock Coal Co., 76 Ohio St.3d 311, 314, 667 N.E.2d 949, 952 (1996) (or if circumstances surrounding 

the agreement give plain language special meaning). 
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harmless from and against any loss, damage, expense, claim, fine and 

penalty, demand, or liability for pollution or contamination, including control 

and removal thereof, that ordinates on or above the surface of the land or 

water from spills, leaks, or discharges of * * * liquids or solids in possession 

and control of [Wildcat Drilling]. These obligations are assumed without 

regard to the negligence of any party or parties.

Contract at ¶ 17.9.1. Under the subtitle “Indemnity Obligations,” the contract further 

provides in pertinent part: 

Except as otherwise expressly limited in this Contract, it is the intent of the 

parties hereto that all indemnity obligations and/or liabilities assumed by such 

parties under the terms of this Contract will be without limit and without regard 

to the cause or causes thereof (including pre-existing conditions), strict 

liability, or the negligence of any party or parties, whether such negligence 

be sole, joint or concurrent, active or passive. 

Contract at ¶ 17.11.

{¶32} Discovery Oil points out magic language, such as an explicit rejection of the 

common law, is not required. See Wildcat Drilling, 164 Ohio St.3d 480 at ¶ 15-6. They 

rely on two examples (of implied intent) cited in Taylor Quality, which the Supreme Court 

issued the same day our case was remanded. See Total Quality Logistics, LLC v. JK & R 

Express, LLC, 164 Ohio St.3d 495, 2020-Ohio-6816, 173 N.E.3d 1168, ¶ 17-18 (noting the 

contract similarly did not expressly say the common law was abrogated and pointing out 

talismanic language was not required to abrogate the common law). 

{¶33} In the cited Worth case, a contract provided the employee the right to retain 

counsel of choice at the company’s expense to represent the employee in connection with 

the initiation or defense of any litigation or legal action. The Supreme Court held the 

employee was entitled to indemnification for attorney’s fees in his unsuccessful action on 

an employment contract, as the contract did not condition indemnification on the 

employee’s success. Worth v. Huntington Bancshares Inc., 43 Ohio St.3d 192, 198-199, 

540 N.E.2d 249 (1989). There was no argument on notice (and the contract specifically 

said the employee could retain counsel of his own choice for litigation).
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{¶34} In the cited Glaspell case, a use agreement said the cable company was 

required to indemnify the telephone and power companies for any loss they may suffer by 

reason of the installation, maintenance, or use of the cable company’s equipment on the 

poles. A cable company employee sued the telephone and power companies claiming 

negligent maintenance of the pole. The Supreme Court held the cable company was liable 

to indemnify the telephone and power companies even though the agreement did not 

specifically say they could be indemnified for loss caused by their own negligence. Glaspell 

v. Ohio Edison Co., 29 Ohio St.3d 44, 46-47, 505 N.E.2d 264 (1987) (“What was intended 

by the parties, as evidenced by the words utilized in the agreement at issue, was that in 

exchange for rights of access to appellants' facilities, appellee was obligated to bear all risk 

of additional harm which might occur in connection with appellee's right of access.”). 

{¶35} The various companies in Glaspell were all parties to the employee’s suit. 

There was no settlement without an indemnitor’s involvement, and thus, there were no 

Globe issues with notice or reasonableness. (We also note the contract in the case at bar 

specifically states the indemnity obligation applies without regard to a party’s negligence; 

although, that is not the issue here.) 

{¶36} Returning to the issue of whether this particular contract clearly indicates the 

Globe requirements have been eliminated, Discovery Oil suggests the intent to abrogate 

the common law is evinced in the language of ¶ 17.11, which states the parties intend all 

indemnity obligations assumed under the contract terms will be “without limit” and which 

requires Wildcat Drilling to “assume full responsibility” and indemnify for “any loss, damage, 

expense, claim, fine and penalty, demand, or liability * * *.” (Emphasis added.)

{¶37} Wildcat Drilling emphasizes any intent to eliminate the common law 

requirements expressed in Globe was not clear. In fact, Wildcat Drilling says the 

indemnification clause shows a clear intent to maintain the notice requirement because it 

requires Wildcat Drilling to defend Discovery Oil.

{¶38} We conclude the contract contains no reference to or indication of the right 

to settle without providing notice to Wildcat Drilling. The statement in ¶ 17.11 that the 

indemnity obligations assumed under the terms of the contract will be “without limit” does 

not clearly indicate indemnity is irrespective of the common law requirement of providing 

notice to a party obligated to respond (and a subsequent fair settlement). (See full quote 
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supra). Pre-settlement notice is not clearly akin to a “limit” on a contractual indemnity 

obligation. In other words, contractual language stating the indemnification obligations are 

“without limit” would not clearly indicate the indemnitor is not entitled to pre-settlement 

notice. 

{¶39} In any event, the “without limit” language in ¶ 17.11 is modified by the 

introductory clause, “Except as otherwise expressly limited in this Contract * * *.” Contrary 

to Discovery’s Oil suggestions, the use of the word “any” before “fine” in ¶ 17.9.1 does not 

clearly indicate an intent to abrogate the common law requirements (for the indemnitee to 

give notice to the indemnitor before entering a fair settlement without the indemnitor’s 

involvement). And, the cited sentence in ¶ 17.9.1 begins by specifically stating Wildcat 

Drilling “shall assume full responsibility for and shall defend, indemnify, and hold [Discovery 

Oil] harmless * * *.” (See full quote supra). As Wildcat Drilling points out, it was impossible 

to defend Discovery Oil when notice was not provided at a time when a defense could be 

presented. 

{¶40} The trial court correctly held the contract does not evince a clear intent to 

abrogate the common law requirements in Globe. In fact, the implied intent clearly shows 

the notice requirement was being maintained because the obligation to defend requires 

notice. This assignment of error is overruled.

ASSIGNMENT OF ERROR 2: ADEQUACY OF NOTICE

{¶41} Discovery Oil’s second assignment of error contends:

“The trial court erred in granting summary judgment because, even assuming, 

arguendo, that the contractual language fails to evince an intent to abrogate the common 

law indemnification requirements, there is a genuine issue of material fact as to whether 

Discovery Oil and Gas satisfied the common law indemnification requirements.”

{¶42} In the fact section of Discovery Oil’s brief, it is noted the trial court’s June 30, 

2021 judgment on remand did not say Discovery Oil failed to comply with the Globe

requirements. Discovery Oil contends there remains a genuine issue of material fact on 

whether Wildcat Drilling was provided timely and proper notice before settlement. 

Discovery Oil raises constructive notice because Wildcat Drilling personnel may have been 

present when a sample was taken by ODNR. It is also claimed that Wildcat Drilling could 

have interjected a defense to ODNR after it learned of the compliance issue from someone 
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else on March 23, 2015, which was after the March 3, 2015 settlement meeting but before 

Discovery Oil paid the agreed-upon fine (via a check dated April 9, 2015) and executed the 

settlement agreement.

{¶43} Wildcat Drilling responds by emphasizing this court already ruled on the 

notice issue and the Supreme Court remanded to the trial court for one purpose: to 

determine if the contract contained a clear intent to abrogate the common law 

indemnification requirements set forth in Globe. They urge this limited remand meant the 

appellate court’s decision would stand if the trial court determined the contract did not 

contain a clear intent to abrogate the common law.

{¶44} In the first appeal to this court, we applied the common law requirements set 

forth in Globe and concluded Discovery Oil was not entitled to indemnification because 

“Wildcat was not notified of the ODNR meeting or given the opportunity to appear at the 

meeting.” Wildcat Drilling, 2018-Ohio-4015 at ¶ 69. We observed, “Wildcat was not fined 

by ODNR and was not privy to the meeting between Discovery and the ODNR regarding 

the fine.” Id. at ¶ 68. We also pointed out Discovery Oil admitted it “intentionally did not 

inform Wildcat about the meeting with ODNR to settle the fine.” Id. at ¶ 64 (noting an 

affidavit acknowledged the unilateral decision of Discovery Oil to engage in settlement 

negotiations alone based on a belief Wildcat Drilling’s involvement would escalate tensions 

with the ODNR and negatively affect the settlement). Based on the lack of proper and 

timely notice, we reversed the trial court’s decision granting summary judgment for 

Discovery Oil on the matter of indemnification and modified the damage award to eliminate 

Wildcat Drilling’s indemnity for the fine. Id. at ¶ 71.

{¶45} On the indemnification issue, Discovery Oil sought to appeal our decision 

that the common law requirements were applicable to a contractual indemnification clause. 

Only the following proposition of law was accepted by the Supreme Court: “Contractuallynegotiated indemnification clauses are not subject to the common law Globe

indemnification requirements.” Wildcat Drilling, 164 Ohio St.3d 480 at ¶ 10. (Other 

propositions of law were not accepted for review.) 

{¶46} When subsequently arguing in support of their sole remaining proposition of 

law, Discovery Oil attempted to append the following additional argument: even if Globe

applied, there were genuine issues of material fact as to whether Wildcat Drilling had notice 
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prior to Discovery Oil’s payment of the fine or execution of the final settlement agreement 

and whether the settlement was fair and reasonable. (Discovery Br. in S.Ct. at 18-19, fn. 

2). However, this argument was not contained in a proposition of law accepted for review 

by the Supreme Court.

{¶47} As acknowledged by the parties, the Supreme Court’s remand instructed the 

trial court to evaluate whether the contract contained a clear intent to abrogate the common 

law requirements in Globe as the Court said no lower court had specifically ruled on that 

issue. The trial court thereafter concluded there was no clear intent to do so. There was 

no need for the trial court to evaluate compliance with the common law notice requirement 

in Globe as this court had already ruled on that specific issue. 

{¶48} Our specific decision finding a lack of proper notice was not set forth as a 

proposition of law in the appeal to the Supreme Court or reviewed by the Court. Moreover, 

there was no instruction for the trial court on remand to consider the issue of whether notice 

was properly and timely provided prior to settlement. Had the trial court done so, it would 

have exceeded the scope of the Supreme Court’s limited remand. As set forth in the prior 

assignment of error, the decision to remand rather than ruling in the first instance did not 

suggest the justices found issues of material fact remained in the case. 

{¶49} The trial court implicitly maintained this court’s holding (on a lack of proper 

and timely notice) when it granted summary judgment to Wildcat Drilling on remand by 

concluding the contract contained no clear intent to abrogate the common law. The law of 

the case doctrine compels “trial courts to follow the mandates of reviewing courts” and 

binds the trial court “to adhere to the appellate court's determination of the applicable law” 

as the court “is without authority to extend or vary the mandate given.” Nolan v. Nolan, 11 

Ohio St.3d 1, 3, 462 N.E.2d 410 (1984). “[T]he rule 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.” Hawley v. 

Ritley, 35 Ohio St.3d 157, 160, 519 N.E.2d 390 (1988).

{¶50} The Supreme Court did not consider the issue of whether pre-settlement 

notice was lacking, but this court did. And, our decision on lacking notice was not accepted 

as a proposition of law (or even offered as one); nor was it mentioned in the remand. 

Discovery Oil was essentially asking the trial court to disagree with this court’s holding 
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without providing a justifying principle (such as the intervening decision principle it raises 

in the fourth assignment of error on a different claim). The trial court properly maintained 

our decision on lacking notice upon answering the sole remanded question. 

{¶51} Even if there is some unvoiced argument that the notice issue we addressed 

would have become non-final on remand (as it was a holding that sequentially falls after 

the remanded threshold issue), the trial court did not err in refusing to vary from the scope 

of the remand and to maintain the appellate court’s decision on whether adequate presettlement notice was provided. See State ex rel. Natl. Elec. Contrs. Assn. v. Ohio Bur. of 

Emp. Serv., 88 Ohio St.3d 577, 579, 728 N.E.2d 395 (2000) (issues beyond the scope of 

the remand are beyond the scope of the next appeal). In addition, there is no reason for 

this court to reconsider that specific holding from the prior appeal of this case. See Wildcat 

Drilling, 2018-Ohio-4015 at ¶ 55-58, 63-64, 68-71. For all of the foregoing reasons, this 

assignment of error is overruled.

ASSIGNMENT OF ERROR 3: AFFIDAVIT

{¶52} Discovery Oil’s third assignment of error alleges:

“The trial court erred in granting summary judgment where Wildcat’s Motion for 

Summary Judgment on Remand was supported only by a deficient affidavit.”

{¶53} Discovery Oil claims the affidavit attached to Wildcat Drilling’s motion for 

summary judgment filed after the Supreme Court’s remand did not set forth specific facts 

or indicate it was made on personal knowledge (as it merely said the facts in the motion 

were “true to the best of my knowledge”). See Civ.R. 56(E) (“Supporting and opposing 

affidavits shall be made on personal knowledge, shall set forth such facts as would be 

admissible in evidence, and shall show affirmatively that the affiant is competent to testify 

to the matters stated in the affidavit.”). 

{¶54} There is “no requirement that a party who moves for summary judgment must 

support the motion with affidavits negating the opponent's claims.” Dresher v. Burt, 75 

Ohio St.3d 280, 291- 292, 662 N.E.2d 264 (1996). Still, “the moving party bears the initial 

responsibility of informing the trial court of the basis for the motion, and identifying those 

portions of the record before the trial court which demonstrate the absence of a genuine 

issue of fact on a material element of the nonmoving party's claim.” (Emphasis added.) 
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Id. at 292. Relying on this principle, Discovery Oil also complains the motion filed by 

Wildcat Drilling after remand did not cite to the record. 

{¶55} However, this assignment of error is misguided. Initially, we note Wildcat 

Drilling’s motion after remand referred to the contractual indemnification provisions. 

Although it did not specify where the contract was located in the record, the motion 

reviewed the published legal decisions by this court and the Supreme Court in this very 

case, which quoted the contractual indemnification provisions. 

{¶56} On this point, the parties agree the case was before the trial court on remand 

with instructions to answer the question of whether the contract evinced a clear intent to 

abrogate the common law indemnification requirements in Globe. As Wildcat Drilling points 

out, the trial court already had before it the prior summary judgment motions with citations 

to the record and evidence (including the contract) from the proceedings prior to the appeal 

and remand. The remand was fundamentally based on those prior motions. 

{¶57} A motion for summary judgment was not even required after remand. 

Wildcat’s post-remand filing functioned as a way to prompt the trial court to respond to the 

remand and was essentially a brief on remand to guide the trial court through its obligations 

while presenting legal arguments on the remand as applied to the facts already in the 

record. An affidavit was not required in order to perform this function. All statements in 

the motion after remand either were already in the record or were legal statements. This 

assignment of error is without merit.

ASSIGNMENT OF ERROR 4: INTERVENING DECISION

{¶58} Discovery Oil’s fourth assignment of error argues:

“The trial court erred in granting summary judgment because the intervening 

decision in Buddenberg v. Weisdack, 161 Ohio St.3d 160, 2020-Ohio-3832, 162 N.E.3d 

603 creates a genuine issue of material fact as to whether Wildcat is civilly liable to 

Discovery Oil and Gas pursuant to R.C. 2307.60 and R.C. 2307.61.”

{¶59} To avoid the restrictions of contractual indemnification (including the common 

law requirements) and to seek enhanced damages, Discovery Oil reasserts its statutory 

claim of civil liability for a criminal act. Discovery Oil alleges Wildcat Drilling committed a 

criminal offense by using brine at the well, citing R.C. 1509.22(A) and R.C. 1509.99. 
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{¶60} R.C. 1509.22(A) prohibits a person from causing brine to be placed in ground 

water, the land, or surface water if it causes or is reasonably anticipated to cause damage 

or injury to public health or safety or to the environment. Division (A) of R.C. 1509.99 

generally sets a fine to be imposed on “[w]hoever violates sections 1509.01 to 1509.31 of 

the Revised Code or any rules adopted or orders or terms or conditions of a permit issued 

pursuant to these sections for which no specific penalty is provided in this section * * *.” 

Division (C) then specifically provides that a person who “knowingly” violates R.C. 

1509.22(A) or rules issued under R.C. 1509.22(C) (including brine) shall be fined $10,000 

or imprisoned for six months, or both for a first offense, with a negligent violation subject to 

a fine of not more than five thousand dollars. R.C. 1509.99(C). “The prosecuting attorney 

of the county in which the offense was committed or the attorney general may prosecute 

an action under this section.” R.C. 1509.99(D). Compare R.C. 1509.33(D) (providing a 

“civil penalty” for a violation of R.C. 1509.22(A) of not less than two thousand five hundred 

dollars nor more than ten thousand dollars for each violation). 

{¶61} In asserting civil liability for a criminal act, Discovery Oil’s counterclaim 

sought damages under R.C. 2307.60 and R.C. 2307.61. The first statute provides in part:

Anyone injured in person or property by a criminal act has, and may recover 

full damages in, a civil action unless specifically excepted by law, may 

recover the costs of maintaining the civil action and attorney's fees if 

authorized by any provision of the Rules of Civil Procedure or another section 

of the Revised Code or under the common law of this state, and may recover 

punitive or exemplary damages if authorized by section 2315.21 or another 

section of the Revised Code.

R.C. 2307.60(A)(1). The next civil liability statute provides in part:

If a property owner brings a civil action pursuant to division (A) of section 

2307.60 of the Revised Code to recover damages from any person who 

willfully damages the owner's property or who commits a theft offense, as 

defined in section 2913.01 of the Revised Code, involving the owner's 

property, the property owner may recover as follows: * * * (b) Liquidated 

damages * * * (ii) Three times the value of the property at the time it was 

willfully damaged or was the subject of a theft offense * * *.
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R.C. 2307.61(A)(b)(ii).

{¶62} The trial court’s January 5, 2017 summary judgment rejected Discovery Oil’s 

statutory claim, stating the record did not show Wildcat Drilling was convicted of any crimes 

related to its drilling activities (and there was no theft claim). Discovery Oil’s second 

assignment of error in its first appeal to this court alleged the trial court erred in granting 

summary judgment to Wildcat Drilling on the issue of whether Discovery Oil was entitled to 

damages under R.C. 2307.60 and 2307.61. This court overruled the assignment of error 

and upheld the entry of summary judgment for Wildcat Drilling on the statutory claim 

without utilizing the trial court’s rationale about a conviction. Wildcat Drilling, 2018-Ohio4015 at ¶ 38-44 (stating the counterclaim was not based on damage to property or theft as 

required by R.C. 2307.61 or a criminal act that injured person or property as required by 

R.C. 2307.60).

{¶63} Discovery Oil’s memorandum in support of jurisdiction filed in the Ohio 

Supreme Court sought to raise the following proposition of law: “A criminal conviction is 

not required to establish a claim under R.C. 2307.60, nor does a criminal act need to be 

‘proved’ to overcome summary judgment on a claim brought pursuant to R.C. 2307.60.” In 

support, Discovery Oil cited the Supreme Court’s then-pending Buddenberg case on the 

issue of whether a civil cause of action under R.C. 2307.60 for injuries based on a “criminal 

act” requires an underlying criminal conviction. The Court refused to accept jurisdiction 

over this proposition of law (accepting only the indemnification issue, which we addressed 

in the first assignment of error). 

{¶64} The Supreme Court then released Buddenberg, holding a conviction is not 

required under R.C. 2307.60. Buddenberg v. Weisdack, 161 Ohio St.3d 160, 2020-Ohio3832, 162 N.E.3d 603. Discovery Oil thereafter filed a motion asking the Supreme Court 

to apply the holding to its pending appeal and to remand for further proceedings on the 

statutory claim. (8/25/20 Mot.). Wildcat Drilling’s response pointed out the Court already 

refused to accept a proposition of law on that issue and said the appellate court found the 

statute inapplicable for reasons other than the lack of a criminal conviction; e.g., the 

counterclaim did not involve injury to person or property under R.C. 2370.60 just as it did 

not involve property damage or theft under R.C. 2370.61. (9/4/20 Resp. at 1-3). The 

Supreme Court implicitly denied Discovery Oil’s motion as the statutory claim was not 
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addressed when the opinion was released four months later on the only proposition of law 

accepted for review (applicability of common law indemnification requirements).

{¶65} After remand, Discovery Oil’s brief in opposition asked the trial court to 

reconsider the prior summary judgment decision on the statutory claim of civil liability for a 

criminal act, generally claiming they suffered damage to property and citing the Supreme 

Court’s Buddenberg holding that a criminal conviction is not required under R.C. 2370.60. 

It was posited that our prior decision in this case (affirming the summary judgment for 

Wildcat Drilling on this issue) was subject to an exception to the law of the case doctrine, 

which applies when an intervening decision of the Ohio Supreme Court is inconsistent with 

the law pronounced in the case at bar. 

{¶66} The trial court implicitly rejected this invitation and ruled only on the 

remanded issue (as we discussed under the first and second assignments of error). 

Discovery Oil now asks this court to apply the intervening decision exception to the law of 

the case doctrine. 

{¶67} The law of the case doctrine states “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 the trial and reviewing levels.” Nolan v. Nolan, 11 Ohio 

St.3d 1, 3, 462 N.E.2d 410 (1984). As mentioned in the second assignment of error, “the 

doctrine functions to compel trial courts to follow the mandates of reviewing courts” and 

“where at a rehearing following remand a trial court is confronted with substantially the 

same facts and issues as were involved in the prior appeal, the court is bound to adhere 

to the appellate court's determination of the applicable law” and “is without authority to 

extend or vary the mandate given.” Id. at 3-4. 

{¶68} Nevertheless, the doctrine is “a rule of practice rather than a binding rule of 

substantive law,” and there is an exception for “extraordinary circumstances, such as an 

intervening decision by the Supreme Court” in which case the lower court can vary from 

the appellate court’s prior mandate in the case as it is bound to take notice of the new 

Supreme Court law. Id. at 3, 5; Hopkins v. Dyer, 104 Ohio St.3d 461, 2004-Ohio-6769, 

820 N.E.2d 329, ¶ 1, 15, 17, 23. 

{¶69} First, we note the alleged intervening decision dealt with whether a conviction 

was required under R.C. 2307.60(A). Buddenberg v. Weisdack, 161 Ohio St.3d 160, 2020-
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Ohio-3832, 161 N.E.3d 603 ¶ 6-14. In addition to citing R.C. 2307.60, Discovery Oil 

continues to cite R.C. 2307.61 (the statute allowing the recovery of treble damages by “any 

person who willfully damages the owner's property or who commits a theft offense”) without 

explaining how Buddenberg would affect our decision on that particular statute. We clearly 

found R.C. 2307.61(A) inapplicable because it is limited to a claim of (willful) property 

damage or a theft offense and Discovery Oil’s claims were not premised on damage to 

property or a theft offense. Wildcat Drilling, 2018-Ohio-4015 at ¶ 40-42, citing R.C. 

2307.61(A) (which also requires the cause of action to be brought under R.C. 2307.60). 

We also cited a case holding a criminal conviction is not required. Id. at ¶ 40, citing 

CitiMortgage Inc. v. Rudzik, 7th Dist. Mahoning No. 13 MA 20, 2014-Ohio-1472. 

{¶70} The additional statutory recovery in R.C. 2307.61 says it only applies when 

“a property owner brings a civil action pursuant to division (A) of 2307.60 of the Revised 

Code.” In discussing the latter section, we said R.C. 2307.60 required the plaintiff to be 

“injured in person or property” by a criminal act and Discovery Oil’s action was not premised 

on a criminal act that injured Discovery Oil in person or property. Wildcat Drilling, 2018-

Ohio-4015 at ¶ 43. We pointed out Discovery Oil’s counterclaim was based on breach of 

contract and the use of brine in drilling, which resulted in a fine and the subsequent failure 

to indemnify. Then, we referred to Wildcat Drilling’s inability to challenge or defend against 

the action initiated against Discovery Oil by the ODNR, and we pointed to the lack of 

“evidence that a criminal act was ever proved.” Id. 

{¶71} Again, the Ohio Supreme Court declined to review Discovery Oil’s proposition 

of law involving the claim of civil liability for a criminal act. The Court made this decision 

notwithstanding Discovery Oil’s citation to the Court’s pending Buddenberg case (in the 

memorandum in support of jurisdiction and in the motion filed in the Supreme Court after 

the release of Buddenberg). As noted supra, Wildcat Drilling’s response emphasized to 

the Supreme Court that we did not refer to the lack of a conviction. The response also said 

we set forth more than one rationale in support of the decision, reading our decision as 

alternatively stating there was no “injury in person or property” alleged or demonstrated by 
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summary judgment evidence. Wildcat Drilling maintains this argument in the appellee’s 

brief herein.3 

{¶72} In any event, Buddenberg was a response to a federal certified question on 

the specific query of whether a criminal conviction was required for the statutory civil action, 

and our decision in the case at bar did not hold that a criminal conviction was required. 

Discovery Oil’s appeal was accepted by the Supreme Court on a different subject after 

refusing to consider the proposition of law on the statutory claim. The case was remanded 

by the Supreme Court on a narrow legal issue unrelated to the statutory claim. 

{¶73} The situation is not the same as when an appellate court remands on an 

issue and the Supreme Court issues an intervening decision on the same topic. Compare

Hopkins, 104 Ohio St.3d 461 (where the Supreme Court issued a decision in another case 

while the subject case was in the appellate court for the second time on the issue of 

whether the plaintiff was entitled to insurance coverage); Jones v. Harmon, 122 Ohio St. 

420, 172 N.E. 151 (1930) (where the appellate court remanded to the trial court for new 

jury instructions and an intervening Supreme Court decision held those new instructions 

were incorrect, the trial court incorrectly refused to apply the intervening decision while the 

case was on remand to the trial court on that same issue).

{¶74} Additionally, the plaintiff in Hopkins argued res judicata prevented 

reconsideration of the final judgment on her status as an insured, and the Supreme Court 

agreed this principle constituted a substantive rule of law (as opposed to the law of the 

case doctrine which is a rule of practice). Hopkins, 104 Ohio St.3d 461 at ¶ 22. The Court 

then concluded the reason res judicata did not apply in that particular case was because 

the judgment at issue was not final since the appellate court remanded for the trial court to 

decide additional issues on the same topic (availability of coverage) on the same claim. Id. 

{¶75} Here, we did not remand but affirmed the trial court’s judgment on the 

statutory claim, a claim that was not the subject of the appeal to the Supreme Court who 

remanded on only an unrelated and narrow legal issue. The part of our decision dealing 

3 The phrase “injured in person or property” has been read broadly as a general tort law phrase. See generally 

Haddle v. Garrison, 525 U.S. 121, 127, 119 S.Ct. 489, 142 L.Ed.2d 502 (1998) (interpreting a federal statute 

on civil liability for retaliation against a witness); Jacobson v. Kaforey, 149 Ohio St.3d 398, 2016-Ohio-8434, 

¶ 10 (in holding R.C. 2307.60 does more than merely codify Ohio common law stating a civil action does not 

merge into a criminal prosecution, the Court omitted this phrase when it quoted the statute and broadly said 

the statute “creates a statutory cause of action for damages resulting from any criminal act”).
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with a statutory claim for a criminal act was final, and that claim was no longer pending. 

This is another feature making our case distinguishable from the cases cited. “[I]ssues 

beyond the scope of a previous remand are beyond the scope of review following a return 

of the case from remand.” State ex rel. Natl. Elec. Contrs. Assn., 88 Ohio St.3d at 579. 

Accordingly, neither the trial court nor this court were required to reconsider the decision 

granting summary judgment for Wildcat Drilling on Discovery’s Oil claim of civil liability for 

a criminal act. This assignment of error is overruled.

ASSIGNMENT OF ERROR 5: DISPUTE IN OTHER COURT

{¶76} Appellant’s final assignment of error alleges:

“The trial court erred in granting summary judgment because Wildcat has already 

inappropriately and illegally collected on the alleged debt in the instant case through 

extrajudicial means.”

{¶77} In the memorandum in response filed in the trial court after the Supreme 

Court remand, Discovery Oil said a separate case in Summit County “produced previously 

unknown information relevant to this matter” and cited Ohio Valley Energy Systems Corp. 

v. Discovery Oil and Gas LLC, Summit C.P. No. CV-2020-05-1510. Supported by an 

affidavit, the memorandum alleged the plaintiff in the Ohio Valley Energy case was Wildcat 

Drilling’s “sister” company who received an assignment of a percentage of the judgment in 

this case and who retained funds it should have paid to Discovery Oil in the course of a 

separate business relationship. Discovery Oil claimed in pertinent part that equity should 

not allow Wildcat Drilling to continue to seek a judgment in this case where a related 

company essentially used “extrajudicial means” to “collect” on the judgment. According to 

Discovery Oil, there was a genuine issue of material fact as to whether “credit” should be 

given in this case based on the information learned in the Summit County case. 

{¶78} On appeal, Discovery Oil alleges the entry of summary judgment was 

improper because “it is still unclear what precise amounts were earned” by Discovery Oil 

through its business relationship with Ohio Valley Energy or when those amounts were 

earned. In response, Wildcat Drilling notes it obtained a favorable judgment in the case at 

bar, no appeal bond was posted, and a party has the right to convey an interest in a 

judgment. Also, the appeal to the Supreme Court in this case was only on the 
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indemnification issue, and the judgment on the unpaid invoice far exceeded the potential 

credit for indemnification. 

{¶79} In any event, the new allegation against a different company concerned a 

breach of contract governing Discovery Oil’s relationship with that company and was a 

theory that arose in a separate case. As Wildcat Drilling emphasizes, any withholding of 

Discovery Oil’s funds by a different company is irrelevant to this case as it existed on 

remand (and should be addressed in the pending Summit County case between the parties 

in that case). Moreover, the allegation was not pled in the case before us but merely 

mentioned in a brief on remand. 

{¶80} Again, this was a remand from the Ohio Supreme Court on a narrow legal 

issue. It was not the time or place to attempt to prove a non-party failed to pay Discovery 

Oil for profits from a separate venture. Once the trial court answered the remanded 

question, there was no obligation to consider new claims or defenses. See National Elec. 

Contrs., 88 Ohio St.3d at 579 (“issues beyond the scope of a previous remand are beyond 

the scope of review following a return of the case from remand”); State v. Kay, 2nd Dist. 

Montgomery No. 26344, 2015-Ohio-4403, ¶ 12 (when a case is remanded for a specific 

purpose, the mandate is limited and is not a remand to address new issues not raised in 

the first appeal or specifically included in the order of remand). This assignment of error is 

without merit.

{¶81} For the foregoing reasons, the trial court’s judgment is affirmed.

Donofrio, P J., concurs.

D’Apolito, J., concurs.
[Cite as Wildcat Drilling, L.L.C. v. Discovery Oil & Gas, L.L.C., 2022-Ohio-1125.]

For the reasons stated in the Opinion rendered herein, the assignments of error 

are overruled and it is the final judgment and order of this Court that the judgment of the 

Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be taxed against 

the Appellant.

A certified copy of this opinion and judgment entry shall constitute the mandate in 

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a 

certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.