[Cite as Trico Land Co., L.L.C. v. Kenoil Producing, L.L.C., 2014-Ohio-1700.]

COURT OF APPEALS 

HOLMES COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

TRICO LAND COMPANY, LLC : JUDGES: 

 : 

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

 Plaintiff-Appellant : Hon. Sheila G. Farmer, J. 

 : Hon. Patricia A. Delaney, J. 

-vs- : 

 : Case No. 13CA008 

 : 

KENOIL PRODUCING LLC : 

 : 

 : 

 Defendant-Appellee : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Holmes County Court 

of Common Pleas, Case No. 12CV007 

JUDGMENT: AFFIRMED 

DATE OF JUDGMENT ENTRY: April 17, 2014 

APPEARANCES: 

For Plaintiff-Appellant: For Defendant-Appellee: 

 

AUDREY E. VARWIG JAMES M. RICHARD 

DICKIE, McCAMEY, & CHILCOTE, PC RICHARD LAW OFFICE, LLC 

2109 Stella Court 127 East Liberty St., Ste 100 

Columbus, OH 43215 P.O. Box 1207 

 Wooster, OH 44691 

 
Holmes County, Case No.13CA008 2 

Delaney, J. 

{¶1} Appellant Trico Land Co., LLC (“Trico”) appeals from the September 24, 

2012, January 24, 2013, and July 3, 2013 judgment entries of the Holmes County Court 

of Common Pleas. Appellee is Kenoil Producing, LLC (“Kenoil”). 

FACTS AND PROCEDURAL HISTORY 

{¶2} On October 1, 2008, Kenlo Properties, LLC (“Kenlo”) entered into an Oil 

and Gas Lease agreement (the “Lease”) with Kenoil whereby Kenoil was granted rights 

to conduct “testing, drilling, operating for oil and gas,” and related activities on a parcel 

of 125.85 acres of real property (the “Property”) located in Holmes County, Ohio. The 

Lease was recorded on October 24, 2008. 

{¶3} The following terms of the Lease are relevant to this appeal. 

{¶4} The habendum clause states: 

It is agreed that this lease shall remain in force for a primary term of 

ten years from this date and if lessee shall commence to drill within 

said primary term or any extension thereof, the said lessee shall 

have the right to continue drilling to completion with reasonable 

diligence and said term shall extend as long thereafter as oil and 

gas, or either of them, is produced by lessee from said land or a 

well is located on said land tract, or from a communitized unit as 

hereinafter provided. 

{¶5} Regarding commencement of a well and delay rental payments: 
Holmes County, Case No.13CA008 3 

If no well be commenced on said land on or before the 1st day of 

October, 2009, this lease shall terminate as to both parties, unless 

the lessee shall on or before that date pay or tender to the lessor or 

the lessor’s credit at the address above, which shall continue as the 

depository regardless of changes in ownership of said land, the 

sum of one hundred tewnty (sic) seven dollars, which shall operate 

as a rental and cover the privilege of deferring the commencement 

of a well for 12 months from said date. The payment herein 

referred to may be made in currency, draft, or check at the option of 

the lessee and the depositing of such currency, draft, or check in 

any post office, with sufficient postage and properly addressed to 

the lessor on or before said last mentioned date, shall be deemed 

payment as herein provided. In like manner and upon like 

payments or tenders, the commencement of a well may be further 

deferred for like periods of the same number of months 

successively. And it is understood and agreed that the 

consideration first recited herein, the down payment, covers not 

only the privilege granted to the date when said first rental is 

payable as aforesaid, but also the lessee’s option of extending that 

period as aforesaid and any and all other rights conferred. 

{¶6} The change in ownership clause states: 

If the estate of either party hereto is assigned, and the privilege of 

assigning in whole or in part is expressly allowed, the covenants 
Holmes County, Case No.13CA008 4 

hereof shall extend to their heirs, executors, administrators, 

successors, or assigns, but no change in ownership of the land or 

assignment of rentals or royalties shall be binding on the lessee 

until after the lessee has been furnished with a written transfer or 

assignment or a true copy thereof; and it is hereby agreed that in 

the event this lease shall be assigned as to a part or as to parts of 

the above described lands and the assignee or assignees of such 

part or parts shall fail or make default in the payment of the 

proportionate part of the rents due from him or them, such defaults 

shall not operate to defeat or affect this lease insofar as it covers a 

part or parts of said lands upon which the said lessee or any 

assignee thereof shall make due payment of said rentals. 

{¶7} The right of forfeiture or rescission is conditioned upon the lessor giving 

lessee thirty days’ written notice stating the reason for the forfeiture: 

In the event Lessor considers that Lessee has not complied with all 

its obligations hereunder, Lessor shall notify Lessee in writing by 

certified mail stating specifically in what respects Lessee has 

breached this contract. Lessee shall then have thirty (30) days 

after receipt of said notice within which to meet or commence to 

meet all or any part of the breaches alleged by Lessor. The service 

of said notice shall be precedent to the bringing of any action by 

Lessor on said lease of thirty (30) days after service of such notice 

on Lessee. Neither the service of said notice nor the doing of any 
Holmes County, Case No.13CA008 5 

acts by Lessee aimed to meet all or any of the alleged breaches 

shall be deemed an admission or presumption that Lessee has 

failed to perform all its obligations hereunder. 

{¶8} Finally, the Lease by its language negates the imposition of implied 

covenants: 

This lease contains all the agreements and understandings of the 

lessor and the lessee respecting the leased premises and no 

implied covenants or obligations shall be read into this lease or 

imposed on the parties or either of them, and no verbal 

representations or promises have been made or relied upon by 

lessor or lessee supplementing or modifying this lease or as an 

inducement thereto. 

{¶9} Kenoil did not commence a well prior to October 1, 2009; nor did Kenoil 

pay a delay rental of $127.00 prior to October 1, 2009. Kenoil made no payments in 

2009 or 2010. 

{¶10} Kenlo did not notify Kenoil of any breach of its obligations under the Lease 

terms. 

{¶11} On December 19, 2008, a limited warranty deed was recorded, 

transferring the Property from Kenlo to Trico. 

{¶12} Trico did not notify Kenoil of its acquisition of the fee simple interest in the 

Property. 

{¶13} On September 22, 2011, Kenoil tendered a check in the amount of 

$1,270.00 to Trico. The check indicated this amount represented 10 years of lease 
Holmes County, Case No.13CA008 6 

rentals at the rate of $127.00 per year. In a letter to Trico dated October 19, 2011, 

Kenoil stated it had tendered the rental payment and believed it was therefore in 

compliance with the terms of the Lease. 

{¶14} On January 24, 2012, Trico filed a civil complaint against Kenoil; Count I is 

a complaint to quiet title and Count II is a claim for slander of title. 

{¶15} On February 16, 2012, Trico recorded an Affidavit of Abandonment stating 

Kenoil’s “oil and gas interest is considered abandoned and is now vested in the present 

surface owner of the real estate [i.e., Appellant Trico].” 

{¶16} On March 30, 2012, Kenoil recorded an Affidavit of Preservation of 

Mineral Rights. 

{¶17} On August 27, 2012, Trico filed a motion for summary judgment and 

Kenoil filed a motion in opposition. On September 24, 2012, the trial court overruled 

Trico’s motion for summary judgment, finding Trico failed to provide Kenoil with notice of 

its purchase of the Property, and Trico did not provide Kenoil with notice of material 

default and an opportunity to cure the default. 

{¶18} On October 19, 2012, Kenoil filed a motion for summary judgment on 

Count II of Trico’s complaint (slander of title) and Trico filed a memorandum in 

opposition. On January 24, 2013, the trial court granted Kenoil’s motion for summary 

judgment. 

{¶19} Trico appealed the trial court’s ruling to this Court in Trico Land Co., L.L.C. 

v. Kenoil Producing, L.L.C., 5th Dist. Holmes No. 13CA001, 2013-Ohio-2065. We 

dismissed the appeal, finding the order was not final and appealable because the trial 

court did not rule on Count I of Trico’s complaint. Id., 2013-Ohio-2065 at ¶ 29. 
Holmes County, Case No.13CA008 7 

{¶20} Back in the trial court, Kenoil filed a motion for summary judgment on 

Count I of Trico’s complaint (quiet title) and Trico filed a memorandum in opposition. On 

July 3, 2013, the trial court granted Kenoil’s motion for summary judgment on Count I of 

the complaint. 

{¶21} Trico now appeals from the trial court’s decisions of September 24, 2012; 

January 24, 2013; and July 3, 2013. 

{¶22} Trico raises four assignments of error: 

ASSIGNMENTS OF ERROR 

{¶23} “I. THE TRIAL COURT ERRED WHEN IT DENIED PLAINTIFFAPPELLANT’S MOTION FOR SUMMARY JUDGMENT. DECISION AND JUDGMENT 

ENTRY – PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, SEPTEMBER 24, 

2012, APPENDIX A.” 

{¶24} “II. THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANTAPPELLEE’S MOTION FOR SUMMARY JUDGMENT ON COUNT II OF PLAINTIFF’S 

COMPLAINT, THE ACTION FOR SLANDER OF TITLE. DECISION ON MOTION FOR 

SUMMARY JUDGMENT, JAN. 24, 2013, APPENDIX B.” 

{¶25} “III. THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANTAPPELLEE’S MOTION FOR SUMMARY JUDGMENT ON COUNT I OF PLAINTIFF’S 

COMPLAINT, THE ACTION TO QUIET TITLE. DECISION AND JUDGMENT ENTRY – 

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON COUNT I OF THE 

COMPLAINT, APPENDIX D.” 

{¶26} “IV. THE TRIAL COURT ERRED WHEN IT FOUND THE EXISTENCE OF 

A SECOND LEASE ON THE PROPERTY THAT WAS NOT IN EVIDENCE. DECISION 
Holmes County, Case No.13CA008 8 

AND JUDGMENT ENTRY – DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 

ON COUNT I OF THE COMPLAINT, APPENDIX D.” 

ANALYSIS 

Failure to Comply with App.R. 16(A)(7) 

{¶27} We first note Trico has not complied with App.R. 16(A)(7), which states: 

The appellant shall include in its brief, under the headings and in 

the order indicated, all of the following: 

* * * *. 

An argument containing the contentions of the appellant with 

respect to each assignment of error presented for review and the 

reasons in support of the contentions, with citations to the 

authorities, statutes, and parts of the record on which appellant 

relies. The argument may be preceded by a summary. 

{¶28} Trico’s assignments of error (Brief for Appellant, 1) are not cited in the 

argument, nor supported individually with argument. Instead we are left to parse Trico’s 

brief for its argument pertaining to each assignment of error. The headings throughout 

Trico’s argument are not assigned errors. 

{¶29} Trico’s stated assignments of error relate to the motions for summary 

judgment and Kenoil has not been prejudiced by the organization of the brief without the 

stated assignments of error. While a party’s failure to comply with the Appellate Rules 

is sometimes fatal, we prefer, in light of the extended procedural history of this case, to 

decide this matter on the merits. See, Mtge. Electronic Registrations Sys. v. Mullins, 61 
Holmes County, Case No.13CA008 9 

Ohio App.3d 12, 2005-Ohio-2303, 829 N.E.2d 326 (4th Dist.); but c.f. Henry v. Gastaldo, 

5th Dist. Tuscarawas No. 2005 AP 03 0022, 2005-Ohio-4109. 

{¶30} We turn, then, to the merits of Trico’s arguments.

I., II., III.

{¶31} These assignments of error are related and will be considered together. 

In its first, second, and third assignments of error, Trico argues the trial court erred in 

overruling its motion for summary judgment and in granting summary judgment for 

Kenoil. We disagree. 

{¶32} Summary judgment motions are to be resolved in light of the dictates of 

Civ.R. 56, which was reaffirmed by the Ohio Supreme Court in State ex rel. Zimmerman 

v. Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639 (1996): 

Civ.R. 56(C) provides that before summary judgment may be 

granted, it must be determined that (1) no genuine issue as to any 

material fact remains to be litigated, (2) the moving party is entitled 

to judgment as a matter of law, and (3) it appears from the 

evidence that reasonable minds can come to but one conclusion, 

and viewing such evidence most strongly in favor of the nonmoving 

party, that conclusion is adverse to the party against whom the 

motion for summary judgment is made. State ex rel. Parsons v. 

Fleming, 68 Ohio St.3d 509, 511, 628 N.E.2d 1377 (1994), citing 

Temple v. Wean United, Inc. 50 Ohio St.2d 317, 327, 364 N.E.2d 

267 (1977). 
Holmes County, Case No.13CA008 10 

{¶33} As an appellate court reviewing summary judgment motions, we must 

stand in the shoes of the trial court and review summary judgment motions on the same 

standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio 

St.3d 35, 36, 56 N.E.2d 212 (1987). 

{¶34} With this standard in mind we turn to the central issue raised by the 

parties’ motions for summary judgment: the validity of the Lease. Trico argues the 

Lease terminated by its own terms due to Kenoil’s failure to commence a well or to 

make rental payments. Kenoil responds the Lease contains a condition precedent 

which Trico failed to satisfy, to wit, providing written notice of the change in ownership of 

the Property. We agree with Kenoil and therefore find the trial court did not err in 

overruling Trico’s motion for summary judgment and granting Kenoil’s motions for 

summary judgment.

{¶35} With respect to oil and gas leases, the Supreme Court of Ohio stated: 

The rights and remedies of the parties to an oil or gas lease must 

be determined by the terms of the written instrument, and the law 

applicable to one form of lease may not be, and generally is not, 

applicable to another and different form. Such leases are contracts, 

and the terms of the contract with the law applicable to such terms 

must govern the rights and remedies of the parties. 

Moore v. Adams, 5th Dist. No. 2007AP090066, 2008-Ohio-5953, 

2008 WL 4907590, ¶ 21, citing Harris v. Ohio Oil Co., 57 Ohio St. 

118, 129, 48 N.E. 502 (1897). 
Holmes County, Case No.13CA008 11 

{¶36} When confronted with an issue of contract interpretation, our role is to give 

effect to the intent of the parties. Westfield Ins. Group v. Affinia Dev., L.L.C., 2012-Ohio5348, 982 N.E.2d 132, ¶ 21 (5th Dist.). We will examine the contract as a whole and 

presume that the intent of the parties is reflected in the language of the contract. In 

addition, we will look to the plain and ordinary meaning of the language used in the 

contract unless another meaning is clearly apparent from the contents of the 

agreement. When the language of a written contract is clear, a court may look no further 

than the writing itself to find the intent of the parties. “As a matter of law, a contract is 

unambiguous if it can be given a definite legal meaning.” Sunoco, Inc. (R & M) v. Toledo 

Edison, Co., 129 Ohio St.3d 397, 2011-Ohio-2720, 953 N.E.2d 285, ¶ 37, citing 

Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶ 

11. 

{¶37} The change in ownership clause in the Lease is a condition precedent to 

the lessee’s obligation to pay rentals. “A condition precedent is a condition which must 

be performed before the obligations in the contract become effective.” Troha v. Troha, 

105 Ohio App.3d 327, 334, 663 N.E.2d 1319 (2nd Dist.1995), citing Mumaw v. W & S. 

Life Ins. Co., 97 Ohio St. 1, 119 N.E. 132 (1917). “Essentially, a condition precedent 

requires that an act must take place before a duty of performance of a promise arises. If 

the condition is not fulfilled, the parties are excused from performing.'” Id., citing Fortune 

v. Fortune, 2nd Dist. Greene No. 90-CA-96, 1991 WL 70721, *4 (May 3, 1991). 

{¶38} In the instant case, the language of the change in ownership clause 

reflects the parties' intention that lessee’s obligation to make delay rental payments to 

an assignee lessor was contingent upon “written transfer or assignment or a true copy 
Holmes County, Case No.13CA008 12 

thereof,” which was a condition precedent to the contract. Troha, supra, 105 Ohio 

App.3d at 334. It is undisputed that Trico provided no such notice. 

{¶39} The lessor’s failure to comply with a change in ownership clause of a 

lease relieves the lessee of its obligation to pay delay rentals, and the lease will not be 

invalidated as a result. Conny Farms, Ltd. v. Ball Resources, Inc., 7th Dist. No. 12 CO 

18, 2013-Ohio-2874, ¶ 29-30. Further, a lessee is not required to constantly search title 

records to discover the identity of a lessor so that payments may be properly made; “[t]o 

so hold would obviate the purpose of the change in ownership clause.” Id. 

{¶40} In Kern v. Clear Creek Oil Co., we examined a clause similar to the one 

here and considered whether a lessor’s failure to notify the lessee of a change in 

ownership relieved the lessee of the obligation to pay delay rentals and thereby 

prevented forfeiture of the lease. 149 Ohio App.3d 560, 2002-Ohio-5438, 778 N.E.2d 

115 (5th Dist.). The Kern clause at issue provided “no changes in ownership of the land 

or assignment of royalties shall be binding on the lessee until after the lessee has been 

furnished with a written transfer or assignment or a true copy thereof.” Id., 2002-Ohio5438 at ¶ 22. We held as follows: 

In construing the language of the lease so as to give effect to the 

intention of the parties, we conclude that the trial court erred when 

it terminated the lease and right-of-way and awarded $2,000 to 

[Lessor]. In doing so, we find that the trial court failed to consider 

the language of the lease requiring notice to be given to [Lessee] 

regarding the change in ownership before such change would be 

binding on [Lessee]. The record indicates that [Lessor] never 
Holmes County, Case No.13CA008 13 

provided [Lessee] with such written notice. The fact that [Lessee] 

may have had verbal notice of the change in ownership does not 

suffice to comply with the specific terms of the lease. This written 

notice was required to make the change in ownership of the land 

binding on [Lessee]. Thus, having failed to provide such written 

notice, we conclude that [Lessor was] not entitled to termination of 

the lease and right-of-way or yearly delay rentals. Accordingly, the 

trial court erred when it granted summary judgment on behalf of 

[Lessor], as we conclude that [Lessor] failed to give written notice to 

[Lessee] according to the clear and unambiguous terms of the 

lease. 

Kern v. Clear Creek Oil Co., 149 Ohio App.3d 560, 2002-Ohio5438, 778 N.E.2d 115 (5th Dist.), ¶ 27. 

{¶41} In the instant case, Kenoil discovered the change in ownership through its 

own investigation. Nevertheless, Trico did not fulfill the condition precedent in the 

Lease, thereby Trico was not entitled to forfeiture of the Lease and Kenoil was not 

obligated to pay the yearly delay rental payments. 

{¶42} As the Seventh District pointed out in Conny Farms, Ltd., supra, Trico 

asks us to invalidate the Lease for Kenoil’s failure to comply with its terms when, 

through its own investigation, Kenoil sought to remedy the situation, yet Trico 

completely failed to comply with the Lease at all. See, Conny Farms, Ltd., supra, 2013-

Ohio-2874 at ¶ 23. 
Holmes County, Case No.13CA008 14 

{¶43} We decline, therefore, to invalidate the Lease. Reasonable minds can 

then come to only one conclusion: Trico cannot maintain its actions to quiet title and for 

slander of title. The trial court thus did not err in overruling Trico’s motion for summary 

judgment. Similarly, the trial court properly granted Kenoil’s motions for summary 

judgment. 

{¶44} Trico’s first, second, and third assignments of error are overruled. 

IV. 

{¶45} In its fourth assignment of error, Trico argues the trial court improperly 

considered a previous lease granted to Kenoil which was not properly in evidence. 

While we agree the “second lease” was not properly in evidence, this assignment of 

error is moot in light of our determination of Trico’s first, second, and third assignments 

of error, to wit, that the trial court properly overruled Trico’s motion for summary 

judgment and sustained Kenoil’s motions for summary judgment on other grounds. 

{¶46} The Ohio Supreme Court has consistently held a reviewing court is not 

authorized to reverse a correct judgment merely because erroneous reasons were 

assigned as the basis thereof. Joyce v. General Motors Corp., 49 Ohio St.3d 93, 96, 

551 N.E.2d 172 (1990) citing Agricultural Ins. Co. v. Constantine, 144 Ohio St. 275, 284, 

58 N.E.2d 658 (1944). 

{¶47} Trico’s fourth assignment of error is overruled. 
Holmes County, Case No.13CA008 15 

CONCLUSION 

{¶48} The four assignments of error of Plaintiff-Appellant Trico Land Co., LLC 

are overruled and the judgments of the Holmes County Court of Common Pleas are 

affirmed. 

By: Delaney, J. and 

Hoffman, P.J. 

Farmer, J., concur.