[Cite as State v. Big Sky Drilling, Inc., 2017-Ohio-7511.]

{¶1} On March 20, 2017, the Ohio Attorney General (the AGO) filed a motion for 

summary judgment on behalf of the State of Ohio and Ohio Environmental Protection 

Agency (OEPA). Defendants and third-party plaintiffs Big Sky Energy, Inc. (BSE), 

Robert Barr, Sr., and Laura Barr and defendants Big Sky Drilling, Inc. (BSD), Big Sky 

Petroleum, LLC (BSP), and Big Sky Well Service, Inc. (BSW), did not file a response. 

The motion for summary judgment is now before the court for a non-oral hearing. 

L.C.C.R. 4. 

STATE OF OHIO ex rel. MICHAEL 

DEWINE OHIO ATTORNEY GENERAL 

 Plaintiff/Counter Defendant 

 v. 

BIG SKY DRILLING, INC., et al. 

 Defendants/Cross-Claim 

 Defendants 

 and 

BIG SKY ENERGY, INC., et al. 

 Defendants/Cross-Claim 

 Plaintiffs/Counter Plaintiffs/Third- 

 Party Plaintiffs 

 v. 

OHIO ENVIRONMENTAL PROTECTION 

AGENCY 

 Third-Party Defendant 

Case No. 2016-00603-PR 

Judge Patrick M. McGrath 

DECISION 
Case No. 2016-00603-PR -2- DECISION 

{¶2} Civ.R. 56(C) states, in part, as follows: 

{¶3} “Summary judgment shall be rendered forthwith if the pleadings, 

depositions, answers to interrogatories, written admissions, affidavits, transcripts of 

evidence, and written stipulations of fact, if any, timely filed in the action, show that 

there is no genuine issue as to any material fact and that the moving party is entitled to 

judgment as a matter of law. No evidence or stipulation may be considered except as 

stated in this rule. A summary judgment shall not be rendered unless it appears from 

the evidence or stipulation, and only from the evidence or stipulation, that reasonable 

minds can come to but one conclusion and that conclusion is adverse to the party 

against whom the motion for summary judgment is made, that party being entitled to 

have the evidence or stipulation construed most strongly in the party’s favor.” See also 

Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean 

United, Inc., 50 Ohio St.2d 317 (1977). 

Procedural history 

{¶4} On January 5, 2012, the AGO brought an enforcement action pursuant to 

R.C. 6111 against BSE in the Ashtabula County Court of Common Pleas (the Ashtabula 

litigation) on behalf of the State of Ohio and the public. The complaint alleged that 

BSE’s operations polluted a tributary of Hubbard Creek with fill and other pollutants and 

impacted a wetland because of grading activities at the drilling site. The suit charged 

BSE with polluting Ohio’s waters and wetlands in violation of R.C. Chapter 6111. 

Mr. Robert W. Barr, Sr. is the statutory agent for BSE. Mr. Barr, Sr. and Ms. Laura Barr 

live in the same address in New Concord, Ohio. 

{¶5} On April 26, 2016, the AGO amended its complaint to add five additional 

defendants: (1) BSD, whose president and statutory agent is Mr. Robert W. Barr, Jr.; 

(2) BSP, whose statutory agent is Mr. Barr, Sr.; (3) BSW, whose president is Mr. Barr, 

Jr. and whose statutory agent is Ms. Barr; (4) Mr. Barr, Sr.; and (5) Ms. Barr. 
Case No. 2016-00603-PR -3- DECISION 

{¶6} In response to the AGO’s amended complaint, BSE, Mr. Barr, Sr. and Ms. 

Barr filed a counterclaim and a third-party claim against Larry Reeder, an OEPA 

employee. In its counterclaim against the AGO, BSE asserted an abuse of process 

claim and indicated that the AGO acted maliciously and in bad faith in instituting the 

action against it. BSE also alleged an abuse of process claim against Mr. Reeder, 

stating that as an enforcement supervisor, Mr. Reeder is responsible for determining 

which enforcement actions should be taken and coordinating accordingly with the 

AGO’s office. BSE’s complaint alleged that during a 2013 hearing for the Ashtabula 

litigation, Mr. Reeder admitted that he was aware that BSE was not the owner of the 

property at issue. On August 9, 2016, BSE filed a petition for removal in this court. 

Upon review, this court dismissed Mr. Reeder as a party and replaced him with OEPA. 

{¶7} Finally, on March 20, 2017, the AGO filed a motion for summary judgment, 

requesting this court to dismiss this case and remand it back to the Ashtabula County 

Court of Common Pleas. Specifically, the AGO lists five reasons indicating why Big 

Sky’s1 claims are baseless: 

(1) They are barred by the two-year statute of limitation in R.C. 2743.16(A). 

(2) The AGO is the sole plaintiff in this case. It filed the case in a representative 

capacity on behalf of the State of Ohio and the public, which means that it is 

not an “opposing party” under Ohio Civ.R. 13, and it is not subject to a 

counterclaim for abuse of process. In addition, because the “State of Ohio” is 

not the real-party plaintiff in this case, it too is not subject to a counterclaim for 

abuse of process. 

(3) The AGO’s alleged “abuse” is solely by implication of Mr. Reeder’s so-called 

“personal campaign against” Big Sky, and the AGO is not vicariously liable for 

the actions of an employee of an executive agency over which it exercises no 

control. 

 1Though only BSE, Mr. Barr and Ms. Barr filed the petition for removal, the court, because of the 

inter-connected administrative structure of the companies, refers to all the Big Sky companies as “Big 

Sky” or “Big Sky entities” hereinafter. 
Case No. 2016-00603-PR -4- DECISION 

(4) OEPA is a third-party defendant, which used no “process” against Big Sky 

and, obviously enough, cannot be liable for “abusing” a “process” it did not 

use. 

(5) Even if Big Sky’s allegations were taken as true, they do not amount to 

“abuse of process” as a matter of law. 

(AGO Motion for Summary Judgment, p. 2). 

 

Statute of limitations 

{¶8} R.C. 2743.16(A) provides the applicable statute of limitations for civil actions 

against the state, stating such actions “shall be commenced no later than two years 

after the date of accrual of the cause of action or within any shorter period that is 

applicable to similar suits between private parties.” As the AGO points out in its motion 

for summary judgment, any claims asserted by Big Sky against the AGO and OEPA 

accrued on January 5, 2012 when the AGO initiated the Ashtabula litigation. In its 

counterclaim and third-party complaint, Big Sky indicates that on October 13, 2013, 

Mr. Reeder admitted that BSE did not own the property at issue in the litigation in the 

Ashtabula litigation. Therefore, Big Sky’s claims, at the very least, accrued on that date, 

and it should have filed its claims in this court by October 13, 2015. Yet, it did not file its 

counterclaim against the AGO and third-party claim against the OEPA until May 13, 

2016. As such, the court finds the AGO’s argument regarding the statute of limitations 

well-taken. 

Real party in interest 

{¶9} The AGO states that it cannot be sued for an abuse of process claim 

because it filed the original complaint in the Ashtabula litigation in a representative 

capacity. Additionally, because the “State of Ohio” is not the real-party plaintiff in this 

case, it too is not subject to a counterclaim for abuse of process. R.C. 6111.04 states 

“[n]o person shall cause pollution or place or cause to be placed any sewage, sludge, 
Case No. 2016-00603-PR -5- DECISION 

sludge materials, industrial waste, or other wastes in a location where they cause 

pollution of any waters of the state.” Under R.C. 6111.07, the AGO is authorized to 

bring suits against a person or entity which “fails to perform any duty imposed by, 

sections 6111.01 to 6111.08 of the Revised Code or who violates any order, rule, or 

condition of a permit issued or adopted by the director pursuant to those sections,” upon 

receiving written notice from the OEPA director. 

{¶10} “A person who sues in one capacity is not subject to counterclaims against 

him in another capacity.” Quintus v. McClure, 41 Ohio App.3d 402, 404 (9th Dist.1987). 

Moreover, a “counterclaim may only be asserted against an opposing party and only 

against that party in the capacity in which that party sued.” Benjamin v. Ernst & Young, 

L.L.P., 167 Ohio App.3d 350, 2006-Ohio-2739, ¶ 7 (10th Dist.). Here, according to the 

AGO’s amended complaint in the Ashtabula litigation, the Big Sky entities allegedly 

polluted an unnamed tributary of Hubbard Creek with pollutants derived from drilling 

without a permit. (AGO amended complaint, p. 18-20). As a result, the AGO, upon 

receiving written notice from OEPA, initiated the action against Big Sky. Construing the 

evidence most strongly in Big Sky’s favor, there is no genuine issue of material fact that 

in this instance the AGO instituted the enforcement action against Big Sky solely in a 

representative capacity and is not amenable to suit. However, upon review, it appears 

that Big Sky has not initiated a counterclaim against the State of Ohio or OEPA because 

it originally filed a third-party complaint against Mr. Reeder. On August 10, 2016, this 

court substituted OEPA for Mr. Reeder. Whether an abuse of process claim is valid 

against OEPA is discussed further below. 

Abuse of process 

{¶11} The AGO’s remaining arguments state that Big Sky has not properly plead 

an abuse of process claim against itself or OEPA. In a claim for abuse of process: “The 

tortious character of the defendant’s conduct consists of his attempts to employ a 

legitimate process for a legitimate purpose in an improper manner, and this point must 
Case No. 2016-00603-PR -6- DECISION 

be clearly shown by the plaintiff to entitle him maintain his action.” Clermont Envtl. 

Reclamation Co. v. Hancock, 16 Ohio App.3d 9, 11 (12th Dist.1984). Consequently, 

there must be a showing of a defendant’s “ulterior motive” in initiating the process. Id. 

“‘Abuse of process’ differs from ‘malicious prosecution’ in that the former connotes the 

use of process properly initiated for improper purposes, while the latter relates to the 

malicious initiation of a lawsuit which one has no reasonable chance of winning.” Id. In 

an abuse of process case, “the improper purpose usually takes the form of coercion to 

obtain a collateral advantage, not properly involved in the proceeding itself, such as the 

surrender of property or the payment of money, by the use of the process as a threat or 

a club.” Prosser & Keeton on Torts, 898, Section 121 (5 Ed. 1984). “Simply, abuse of 

process occurs where someone attempts to achieve through use of the court that which 

the court is itself powerless to order.” Robb v. Chagrin Lagoons Yacht Club, 75 Ohio 

St.3d 264, 271 (1996). 

{¶12} Here, according to Big Sky’s counterclaim, the AGO “was motivated by its 

desire to cause BSE to suffer financial distress and incur legal fees defending a 

complaint to which it had no involvement in an attempt to coerce BSE into paying a 

settlement.” (Big Sky’s Answer, Crossclaim, Counterclaim, and Third-Party Complaint, 

p. 10). Specifically, Big Sky appears to state that the AGO used a valid process, the 

enforcement action, to force BSE into paying a settlement. However, R.C. 6111.07 

plainly authorizes the AGO to bring suits against an entity which has polluted state 

waters upon receipt of a written directive from the OEPA director. Because Big Sky has 

not responded to the AGO’s motion for summary judgment to provide alternate reasons, 

based on the evidence at hand, the court must conclude that the AGO validly initiated 

the enforcement action against Big Sky. Moreover, the court agrees with the AGO’s 

argument that it cannot be vicariously liable for Mr. Reeder’s action, who is an OEPA 

employee, because the AGO exercises no control over the OEPA. Lastly, the OEPA 
Case No. 2016-00603-PR -7- DECISION 

itself did not initiate the enforcement action against Big Sky because it authorized the 

AGO to do so. As such, any abuse of process claim against OEPA must also fail. 

{¶13} R.C. 2743.03(E)(2) states: “The filing (of the petition for removal) effects 

the removal of the action to the court of claims * * * The court of claims shall adjudicate 

all civil actions removed. The court may remand a civil action to the court in which it 

originated upon a finding that the removal petition does not justify removal, or upon a 

finding that the state is no longer a party.” 

{¶14} Inasmuch as Big Sky’s abuse of process counterclaim and third-party claim 

were the only claims against the state in this matter, the court finds that the removal 

petition does not justify removal. Accordingly, the case shall be remanded to the 

Ashtabula County Court of Common Pleas. 

{¶15} For the foregoing reasons, the AGO and OEPA are entitled to summary 

judgment as a matter of law on all claims asserted in Big Sky’s counterclaim and thirdparty complaint. The AGO’s motion for summary judgment shall be granted and 

judgment shall be rendered in favor of the AGO and OEPA. 

 PATRICK M. MCGRATH 

 Judge 
[Cite as State v. Big Sky Drilling, Inc., 2017-Ohio-7511.]

{¶16} A non-oral hearing was conducted in this case upon the Ohio Attorney 

General’s (the AGO) motion for summary judgment filed on behalf of the State of Ohio 

and Ohio Environmental Protection Agency (OEPA). For the reasons set forth in the 

decision filed concurrently herewith, the AGO’s motion for summary judgment is 

GRANTED and judgment is rendered in favor of the AGO and OEPA. All other pending 

motions are DENIED as moot and all previously scheduled events are VACATED. The 

court finds that it has no jurisdiction over the claim asserted in the original papers 

received from Ashtabula County. Accordingly, pursuant to R.C. 2743.03(E)(2), this 

STATE OF OHIO ex rel. MICHAEL 

DEWINE OHIO ATTORNEY GENERAL 

 Plaintiff/Counter Defendant 

 v. 

BIG SKY DRILLING, INC., et al. 

 Defendants/Cross-Claim 

 Defendants 

 and 

BIG SKY ENERGY, INC., et al. 

 Defendants/Cross-Claim 

 Plaintiffs/Counter Plaintiffs/Third- 

 Party Plaintiffs 

 v. 

OHIO ENVIRONMENTAL PROTECTION 

AGENCY 

 Third-Party Defendant 

Case No. 2016-00603-PR 

Judge Patrick M. McGrath 

JUDGMENT ENTRY 
Case No. 2016-00603-PR -9- DECISION 

case is REMANDED to the Ashtabula County Court of Common Pleas and the 

original papers shall be returned thereto. Court costs are assessed against Big Sky 

Energy, Inc., Robert Barr, Sr. and Laura Barr. The clerk shall serve upon all parties 

notice of this judgment and its date of entry upon the journal. 

 PATRICK M. MCGRATH 

 Judge 

cc: 

Randall W. Knutti 

Assistant Attorney General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Christopher J. Caffarel 

Gino Pulito 

230 Third Street, 2nd Floor 

Elyria, Ohio 44035 

Casey L. Chapman 

Christine R. Schirra 

Janean Weber 

L. Scott Helkowski 

Assistant Attorneys General 

Environmental Enforcement Section 

30 East Broad Street, 25th Floor 

Columbus, Ohio 43215 

Big Sky Drilling, Inc. 

c/o Robert W. Barr, Jr. 

130 Woodview 

Cortland, Ohio 44410 

Big Sky Well Service, Inc. 

c/o Robert W. Barr, Jr. 

130 Woodview 

Cortland, Ohio 44410 

Filed July 31, 2017 

Sent to S.C. Reporter 9/8/17