Bone v. K.A. Brown Oil & Gas, L.L.C.

[Cite as Bone v. K.A. Brown Oil & Gas, L.L.C., 2024-Ohio-5044.]

IN THE COURT OF APPEALS OF OHIO

SEVENTH APPELLATE DISTRICT

MONROE COUNTY

CHELSEA M. BONE ET AL.,

Plaintiffs-Appellants,

v.

K. A. BROWN OIL & GAS, LLC ET AL.,

Defendants-Appellees.

OPINION AND JUDGMENT ENTRY

Case No. 24 MO 0002

Civil Appeal from the

Court of Common Pleas of Monroe County, Ohio

Case No. 2022-048

BEFORE:

Mark A. Hanni, Cheryl L. Waite, Katelyn Dickey, Judges.

JUDGMENT:

Affirmed.

Atty. Chelsea M. Bone, Chelsea M. Bone, LLC and Atty. Flite H. Freimann, Freimann

Law, LLC, for Plaintiffs-Appellants and

Atty. Gregory D. Russell, Atty. Thomas H. Fusonie and Atty. Emily J. Taft, Vorys, Sater,

Seymour & Pease LLP, for Defendant-Appellee K.A. Brown Oil & Gas, LLC and

Atty. Dave Yost, Ohio Attorney General, Atty. Brett A. Kravitz and Atty. Joseph

Wambaugh, Assistant Attorneys General, Environmental Enforcement Section, for

Defendant-Appellee Mary Mertz, Director of the Ohio Department of Natural Resources.

Dated: October 18, 2024

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HANNI, J.

{¶1} Plaintiffs-Appellants Chelsea M. Bone (Attorney Bone), Franklin and

Tamara Ellis (Ellises), and David and Robin Hendershot (Hendershots) (collectively

Appellants), appeal the February 5, 2024 judgment of the Monroe County Court of

Common Pleas. The court granted a motion to dismiss Appellants’ complaint filed by

Appellees K.A. Brown Oil & Gas, LLC (Brown), and Mary Mertz (Mertz), Director of the

Ohio Department of Natural Resources (ODNR) (collectively Appellees). The court held

that Appellants improperly filed their complaint in mandamus, lacked standing to file the

complaint, and held that their claims were otherwise moot. The court also denied

Appellants’ motion for leave to amend their complaint.

{¶2} On appeal, Appellants contend that the trial court erred by dismissing the

complaint and by denying them leave to amend the complaint. They assert that they had

sufficient legal standing, the ODNR issued a permit in violation of state law, the

mandamus was properly filed, and the trial court lacked any basis to find that Brown was

significantly prejudiced or harmed by Appellants’ actions.

{¶3} For the following reasons, we affirm the trial court’s decision to dismiss the

complaint.

{¶4} Brown submitted a permit application for a Class II injection well in June

2019 at a property site located on State Route 7. R.C. 1509.02 grants the ODNR, Division

of Oil and Gas Resources Management (Division), exclusive authority to regulate the

permitting and operation of saltwater-injection wells in Ohio. See The State ex rel. Omni

Energy Group, L.L.C. v. Ohio Dept. of Natural Resources, 2020-Ohio-5581, ¶ 2. The

chief of the Division determines whether to issue or deny the permits. Ohio Adm.Code

(OAC) 1501:9-3-06(H)(2)(3).

{¶5} OAC 1501:9-3-06(H), which was in effect at the relevant time, provided a

four-step procedure in the saltwater-injection-well-application process.1 The first step

was for the Division to determine whether the application for an injection well contained

1 The version of OAC 1501:9-3-06 in effect at the time contained OAC 1501:9-3-06(H), which was effective

to January 12, 2022. The application for a permit and granting of the permit were performed in 2021.

Accordingly, the applicable regulation in effect during this time was that effective until January 12, 2022.

Case No. 24 MO 0002

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the required information. OAC 1501:9-3-06(H)(1). The second step required the

applicant to publish the notice of the permit application in accordance with R.C. 1509.06

“in a newspaper of general circulation in the county in which the proposed well is situated

for a period of not less than five consecutive days.” OAC 1501:9-3-06(H)(1). The third

step provided time for people to comment or object in writing to the application. OAC

1501:9-3-06(H)(3). The fourth step was for the chief of the Division to receive the

comments and objections and to issue or deny the permit. OAC 1501:9-3-06(H)(3). The

ODNR issued Brown’s permit for the injection well on October 12, 2021.

{¶6} On February 8, 2022, Appellants filed a three-count complaint against

Appellees. Appellants stated that they were residents of Monroe County who lived within

1,000 feet of the proposed injection well owned by Brown. They alleged that Brown and

Mertz did not comply with then-effective OAC 1501:9-3-06(H)(1) because Brown

published the notice in The Marietta Times, a daily newspaper circulated in Monroe

County but published in West Virginia. Appellants asserted that Brown should have

published his permit application notice in the Monroe County Beacon, a weekly

newspaper circulated and published in Monroe County, and Mertz and the ODNR should

not have allowed the allegedly improper publication.

{¶7} Appellants requested a writ of mandamus, a preliminary injunction, and

money damages in their complaint. They requested that the court order Brown to

resubmit notice in the Monroe County Beacon and require Mertz to hold a public hearing

on the proposed well. Appellants also requested that the court enjoin further action on

the injection well until public notice was properly issued, a public hearing was held, and

Brown met OAC 1501:9-3-06.

{¶8} Mertz filed a motion to dismiss the complaint, asserting that she lacked

authority to issue permits and Appellants lacked standing to sue because they had notice

of the permit and were able to comment and object to the well. Brown also filed a motion

to dismiss based upon Appellants’ lack of standing to challenge a permit that was already

issued, their failure to meet the elements to compel mandamus, and an argument that

mandamus was not the appropriate remedy.

Case No. 24 MO 0002

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{¶9} On June 6, 2022, Appellees filed a motion for preliminary injunction in the

trial court. They requested that the court enjoin Brown from starting drill operations at the

well site. Appellants opposed the motion.

{¶10} On June 29, 2022, the trial court issued a journal entry denying both motions

to dismiss the complaint.

{¶11} The trial court thereafter held a hearing on the motion for preliminary

injunction and on August 23, 2022, issued findings of fact, conclusions of law, and a

judgment entry granting Appellants’ motion and ordering Brown to cease operations at

the well site. Brown filed an appeal of the decision.

{¶12} On August 22, 2023, we dismissed Brown’s appeal as prematurely filed and

remanded the case to the trial court. Bone v. K.A. Brown Oil & Gas, 2023-Ohio-2944 (7th

Dist.). We found that unresolved procedural issues rendered the trial court’s ruling on

the preliminary injunction premature. We remanded the case for the court to address

whether Appellants had standing to file a complaint in mandamus or standing in general

in this case to file the complaint. We further ordered that if the trial court affirmatively

answered those questions, it should address whether a preliminary injunction is

appropriate and whether any ruling thereon is a final appealable order.

{¶13} Upon remand, the trial court held a status conference and ordered the

parties to file briefs addressing mandamus and standing. The parties complied.

{¶14} On February 5, 2024, the trial court issued a judgment entry incorporating

findings of fact and conclusions of law. The court dismissed Appellants’ complaint based

upon non-compliance with the mandamus statute, lack of standing to file the complaint

even without a mandamus action, and mootness. The court further denied Appellants

leave to file a motion to amend their complaint.

{¶15} The trial court first held that Appellants had not met the requirements of the

mandamus statute, R.C. 2731.04. The court found it undisputed that Appellants’

complaint was not in required petition form, did not contain the name of the state as

relator, and was not verified by affidavit. The trial court also cited our remand decision in

which we cited cases holding that mandamus does not lie against a private party.

{¶16} The trial court further found that Appellees placed Appellants on notice of

their complaint deficiencies and Appellants failed to move to amend their complaint to

Case No. 24 MO 0002

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meet the statute’s requirements. The court cited Blankenship v. Blackwell, 2004-Ohio-

5596, which provides that if a respondent raises statutory defects and the relators fail to

seek leave to amend the complaint, the complaint must be dismissed.

{¶17} The trial court also found that Appellants failed to meet the elements of

standing to bring a claim. The court held that Appellants had actual notice of Brown’s

permit application before it was issued, they had the opportunity to be heard, and they

submitted comments that the ODNR addressed. The court found that Brown’s publication

of its permit application accomplished the purpose of providing notice because Appellants

were able to object and submit comments that the ODNR considered and addressed.

The court further found that Appellants’ request for notice of republication would not likely

redress their alleged injuries since they were provided actual notice and the ODNR

addressed their objections and comments. The trial court additionally held that Appellants

failed to establish that they sustained an injury different from that sustained by the public

in general, which was also required to possess standing.

{¶18} The court further denied Appellants’ post-remand request to file an

amended complaint. The trial court held that Appellants failed to attach a proposed

amended complaint to their request, and the request was untimely and filed to purposely

delay Brown from operating under the permit. The court also found that Brown would be

significantly prejudiced by Appellants’ untimeliness in filing for leave to amend since

Brown had already engaged in significant construction efforts well before Appellants filed

their complaint and motion for preliminary injunction.

{¶19} Finally, the trial court found that even if Appellants properly filed a complaint

or a complaint in mandamus, their claims were moot. The court explained that although

Appellants had actual notice of the issuance of the Brown permit within six days, they

waited over four months before challenging construction of the well and then waited

another four months before filing the motion for preliminary injunction to stop construction.

The court held that Appellants did not seek to stay the permit until after Brown began

substantial construction and foundational work on the well.

{¶20} The trial court dismissed Appellants’ complaint based upon its findings of

fact and conclusions of law and “consistent with the specific remand instructions from the

Seventh District Appellate Court.”

Case No. 24 MO 0002

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{¶21} Appellants filed a notice of appeal and assert four assignments of error.

Appellants’ first assignment of error contends:

TRIAL COURT ERRED IN GRANTING DEFENDANTS’ MOTION TO

DISMISS IN FINDING THAT PLAINTIFFS LACKED STANDING TO

BRING THIS ACTION.

{¶22} Appellants quote the legal definition of standing and assert that they

possess standing as residents of Monroe County who are affected by the proposed

injection well. They cite State ex rel. Food & Water Watch v. State, 2018-Ohio-555, ¶ 19,

and contend that they meet the three elements of standing. They contend that they

suffered an injury because of the failures of Mertz and Brown to provide public notice to

them of the permit application. They further contend that their injuries are fairly traceable

to Brown and Mertz since Brown failed to provide them proper notice and Mertz failed to

require Brown to provide proper notice. Appellants assert that they meet the third

standing requirement because their injury is easily redressable by requiring Brown to

provide proper legal notice in the Monroe County Beacon.

{¶23} Appellants cite then-effective OAC 1501:9-3-06(H)(1)’s requirement that the

permit applicant publish legal notice “in a newspaper of general circulation in the county

in which the proposed well is situated for a period of not less than five consecutive days.”

They stress that Brown failed to provide said notice because he published in The Marietta

Times and not the Monroe County Beacon, where the well would be situated. They

submit that the regulation does not allow for an actual notice exception and the

requirement for publication for “five consecutive days” comes after the requirement that

the notice be published in the county in which the well is located. Therefore, the fact that

The Marietta Times was published daily did not negate the requirement that Brown

publish the application permit in the weekly Monroe County Beacon since it was published

in the area where the well site is located.

{¶24} Appellants maintain that although the Hendershots received actual notice

and notified the ODNR that The Marietta Times was the wrong newspaper for publication,

the ODNR refused to require republication in the Monroe County Beacon. Appellants

argue that they are left with no legal recourse based on the trial court’s holding that they

Case No. 24 MO 0002

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waived the right to challenge the ODNR’s allowance of improper notice under the statute

because they received actual notice. They note that the ODNR required Brown to

republish its first notice that it had published in The Marietta Times because it did not

include its business address in the notice as required by OAC 1501:9-3-06(H)(1)(a). They

posit that the ODNR then interpreted its regulation to permit Brown to publish his notice

of permit application in the wrong newspaper even though the regulation required

publication in a newspaper where the well site was to be located. Appellants assert that

they have no manner in which to challenge this interpretation if waiver applies.

{¶25} We find no merit to Appellants’ first assignment of error. “Whether a party

has standing to bring an action is a question of law that we review de novo.” 701

Lakeside, LLC v. Pinnacle Condominium Unit Owners Assn., 2024-Ohio-2899, ¶ 25 (8th

Dist.), citing State ex rel. Ames v. Portage Cty. Bd. of Revision, 2021-Ohio-4486, ¶ 8. A

party must have standing to sue before a court can consider the merits of a legal claim.

Bridge Health Care Partners, LLC v. LTAH Real Estate Holdings, LLC, 2022-Ohio-1053,

¶ 44 (7th Dist.) (citations omitted). Standing to sue exists when one has a “personal

stake” in the outcome of litigation. Id., quoting Abroms v. Synergy Bldg. Sys., 2011-Ohio-

2180, ¶ 46 (2d Dist.).

{¶26} In order to establish standing, a party must show “(1) an injury that is (2)

fairly traceable to the appellees’ allegedly unlawful conduct, and (3) likely to be redressed

by the requested relief.” Moore v. Middletown, 2012-Ohio-3897, ¶ 22, citing Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-561 (1992). The Sixth District Court of Appeals

in Beadle v. O’Konski-Lewis, 2016-Ohio-4749, ¶ 11, elaborated on the requirements of

standing as the following:

The constitutional minimum of standing contains three elements: (1) an

“injury in fact,” which is “an invasion of a legally protected interest which is

(a) concrete and particularized, * * * and (b) ‘actual or imminent, not

“conjectural” or “hypothetical;” ’ ” (2) a causal connection between the injury

and the challenged action, and (3) that it must be “ ‘likely,’ as opposed to

merely ‘speculative,’ that the injury will be ‘redressed by a favorable

decision.’ ” (Internal citations omitted). Lujan v. Defenders of Wildlife, 504

U.S. 555, 560–561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

Case No. 24 MO 0002

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{¶27} In the instant case, Appellants have not established that they personally

suffered an actual or imminent concrete injury. They complain of improper publication of

notice, but they received actual notice. While not received in the manner provided by the

regulation, Appellants nevertheless received notice of the permit application and they

were able to comment on and object to the permit application. The purpose of notice was

therefore accomplished because Appellants, as those affected by and interested in the

injection well and permit application, received notice of Brown’s permit application.

Appellants were able to submit written comments and objections and those complaints

were considered by the ODNR and addressed in writing. Accordingly, these Appellants

did not suffer injury from Brown’s publication in The Marietta Times since they received

actual notice. “A plaintiff has standing only if he can ‘allege personal injury fairly traceable

to the defendant's allegedly unlawful conduct and likely to be redressed by the requested

relief.’” California v. Texas, 593 U.S. 659, 668-669 (2021), quoting DaimlerChrysler Corp.

v. Cuno, 547 U.S. 332, 342 (2006) (internal quotation marks omitted) and citing Lujan,

504 U.S. at 560–561.

{¶28} Further, without a personal injury, no causal connection exists with the

notice published by Brown in The Marietta Times. Even if an alleged injury existed, no

causal connection exists between the injury and the publication since Appellants received

notice of the permit application, commented on and objected to it, and the ODNR

considered and responded to it.

{¶29} And finally, Appellants request the remedy of republication of the permit

application in the Monroe County Beacon, but this does not fulfill the redressability factor

for standing since Appellants already received the notice and were able to comment and

object and have their comments and objections considered and addressed.

{¶30} Accordingly, we find that Appellants lack standing to file their complaint and

their first assignment of error lacks merit.

{¶31} In their second assignment of error, Appellants assert:

TRIAL COURT ERRED IN FINDING THAT ACTUAL NOTICE WAS

SUFFICIENT UNDER THE OHIO ADMINISTRATIVE CODE SECTION

1501:9-3-06(H)(1) AND NOT REQUIRING THE PUBLICATION IN A

Case No. 24 MO 0002

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NEWSPAPER OF GENERAL CIRCULATION IN THE COUNTY IN WHICH

THE WELL WAS LOCATED.

{¶32} Appellants contend that Brown failed to provide the required legal notice of

its permit application. They dissect the language of R.C. 1509.06, which requires

publication of the permit application “in a newspaper of general circulation in the county

in which the proposed well is situated for a period of not less than five consecutive days.”

OAC 1501:9-3-06(H)(1). They note that “newspaper of general circulation” is a defined

term in Ohio Revised Code 7.12. Appellants maintain that a court must give words their

clear and plain meanings and must give meaning to every word in a regulation or statute.

{¶33} Appellants further submit that Brown was required to provide notice in the

“newspaper of general circulation in the county in which the proposed well is situated.”

They contend that this is the Monroe County Beacon as it is in general circulation in

Monroe County and Monroe County is where the well is situated. They posit that we

should not read into the regulation an actual notice exception when the regulation

specifically requires publication of notice.

{¶34} Appellees respond that the trial court did not hold that actual notice was

proper under OAC 1501:9-3-06(H)(1). Rather, they submit that the court never reached

the merits of this assertion because it found that Appellants lacked standing to file the

complaint, which was a procedural and jurisdictional issue which prevented a

determination of the merits. Appellees contend that Appellants are conflating the

requirements for legal standing with the merits of the notice issue itself.

{¶35} We decline to address this assignment of error. It appears that Appellants

are arguing that the trial court decided the merits of whether notice by publication in The

Marietta Times was sufficient to constitute notice under OAC 1501:9-3-06(H)(1).

However, the court followed our remand order and determined whether Appellants had

legal standing to file the complaint or a complaint in mandamus. The trial court

determined that mandamus was improper and Appellants lacked standing to file their

claims because actual notice negated their ability to demonstrate the standing element of

injury. It does not appear that the court determined the merits of whether notice in The

Marietta Times constituted proper notice.

{¶36} Accordingly, we decline to address Appellants’ second assignment of error.

Case No. 24 MO 0002

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{¶37} In their third assignment of error, Appellants assert:

TRIAL COURT ERRED IN FAILING TO GRANT PLAINTIFFS [sic]

MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT.

{¶38} Appellants cite Civ. R. 15 governing the filing of an amended complaint and

note that the Rule provides that the court should freely grant such leave. Appellants note

that a writ of mandamus is an extraordinary remedy and R.C. 2731.04 contains

requirements for the filing of a writ, which includes the filing of a petition, a petition in the

name of the state as relator for the person applying, and a verification by affidavit. They

acknowledge that they failed to file their complaint in compliance with the statute.

{¶39} However, Appellants contend that this case required two separate

defendants, one a private party and one an agency, because Brown was required to

publish the notice and the ODNR accepted Brown’s deficient application and approved

its improper publication. Appellants note that without both parties as defendants, each

could blame the other and this would leave Appellants without legal recourse.

{¶40} Appellants further assert that allowing them to amend the complaint to

change the caption of the case and add the affidavit presents no disadvantage or injury

to Brown or the ODNR. They note that it was not until our Decision that an issue was

discovered concerning the complaint’s noncompliance with the mandamus statute.

Appellants further maintain that while caselaw holds that mandamus will not lie against a

private party, their complaint asserts a mandamus action only against the ODNR and

injunctive relief against only Brown.

{¶41} Appellants challenge the trial court’s denial of their motion to amend on the

basis that they were required to attach a copy of their proposed amended pleading to

their motion. Appellants submit that this is not the law and the Ohio Rules of Civil

Procedure do not require it. Appellants assert that justice requires the amendment and

Appellees will not be prejudiced by allowing the amendment.

{¶42} Appellees assert that the trial court did not abuse its discretion by denying

Appellants’ motion for leave to file an amended complaint. They contend that the

complaint is not properly captioned in mandamus as required under R.C. 2731.04. They

cite caselaw from the Ohio Supreme Court and this Court dismissing complaints after a

Case No. 24 MO 0002

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respondent had alerted a relator of noncompliance with the statute and the relator fails to

seek leave to amend under the statute. See Blankenship, 2004-Ohio-5596, ¶ 36; Perry

v. Sweeney, 2020-Ohio-119, ¶ 7 (7th Dist.); McQueen v. Evans, 2008-Ohio-4807, ¶ 6 (7th

Dist.). They explain that Appellants in this case did not seek leave to amend their

complaint after they were alerted to their deficiencies by the ODNR in its March 9, 2022

motion to dismiss. They note that it was not until November 8, 2023, well after this Court’s

remand order, when Appellants filed a six-sentence motion for leave to amend without

explaining the long delay in filing or attaching a proposed amended complaint.

{¶43} Appellees also refute Appellants’ assertion that they could not file a

complaint in mandamus because there was a private party and an agency involved in one

case. They submit that the mandamus statute is clear in its requirements on who may be

sued and the requirements for the petition.

{¶44} The standard of review for a trial court’s denial of a motion for leave to

amend a complaint is abuse of discretion. Everhart v. Coshocton Cty. Memorial Hosp.,

2024-Ohio-1671, ¶ 5 (10th Dist.) (citations omitted). An abuse of discretion implies that

the trial court's decision was unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219 (1983).

{¶45} Civ. R. 15(A) governs amendment of pleadings and provides:

A party may amend its pleading once as a matter of course within

twenty-eight days after serving it or, if the pleading is one to which a

responsive pleading is required within twenty-eight days after service of a

responsive pleading or twenty-eight days after service of a motion under

Civ.R. 12(B), (E), or (F), whichever is earlier. In all other cases, a party may

amend its pleading only with the opposing party's written consent or the

court's leave. The court shall freely give leave when justice so requires.

Unless the court orders otherwise, any required response to an amended

pleading must be made within the time remaining to respond to the original

pleading or within fourteen days after service of the amended pleading,

whichever is later.

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{¶46} The Ohio Supreme Court has held that even though the trial court

possesses the discretion to grant or deny leave to amend, the court abuses its discretion

when it denies a plaintiff leave to file an amended complaint “where it is possible that the

plaintiff, by an amended complaint, may set forth a claim upon which relief can be granted,

and it is tendered timely and in good faith and no reason is apparent or disclosed for

denying leave.” Peterson v. Teodosio, 34 Ohio St.2d 161, 175 (1973).

{¶47} The trial court in this case cited our holding in Netherlands Insurance

Company v. BSHM Architects, Inc., 2018-Ohio-3736, ¶ 51 (7th Dist.), and found that since

Appellants were beyond the time for filing an amendment as of right, they had to make “a

prima facie showing of support for the new matters sought to be plead, the timeliness of

the motion, and whether the proposed amendment would prejudice the opposing party.”

{¶48} The trial court explained that the instant case had been pending for two

years. The court noted that even though R.C. 2731.04 has required since 1953 that

mandamus actions be brought in the name of the State and in a petition, Appellants did

not move to amend their deficient complaint to comply. The court further noted that

Appellants did not move to amend their deficient complaint at the court’s telephone

conference with the parties on September 28, 2023, which was nearly one month after

we issued our August 22, 2023 remand Order noting the complaint’s mandamus

deficiencies. The trial court related that Appellants did not request leave to file an

amended complaint at the conference, but rather stated that they would drop their

damages claim and wanted the court to rule on the merits of dispositive motions. The

trial court explained that it was not until six weeks after the telephone conference when

Appellants filed their motion for leave to file an amended complaint and did not include a

proposed amended complaint or an explanation for the delay in filing. The court indicated

that Appellants also requested at that time another 30 days in which to serve their

amended complaint.

{¶49} These reasons sufficiently support upholding the trial court’s denial of the

motion to amend based on untimeliness.

{¶50} The court further found that Appellants’ reasons for filing the amended

complaint were vague and insufficient in that they sought to amend to correct their

mandamus deficiencies, and to “elucidate the correlation of the action to both

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Defendants.” The court noted our holding that mandamus does not lie against a private

party and found that Appellants failed to explain how they could maintain Brown in a

mandamus action upon filing to amend the complaint.

{¶51} Appellants also assert that the court erred by denying their motion for leave

to file the amended complaint due to their failure to attach the proposed amended

complaint. They submit that the law does not require the attachment. We need not

address this assertion as we find that the trial court’s untimeliness and vagueness

reasons suffice to overcome the abuse of discretion standard.

{¶52} Accordingly, Appellants’ third assignment of error lacks merit and is

overruled.

{¶53} In their fourth assignment of error, Appellants assert:

TRIAL COURT ERRED IN FINDING THAT DEFENDANT K.A. BROWN

HAD BEEN SIGNIFICANTLY PREJUDICED BY PLAINTIFFS [sic]

ACTION.

{¶54} Appellants contend that the trial court erred by finding that Brown was

significantly prejudiced by their untimeliness when it held that:

This Court further finds that Plaintiffs’ untimeliness has caused Defendant

K.A. Brown to be significantly prejudiced. The evidence of record

established the various investment and planning efforts in connection with

the injection well permit. The record also established the significant

construction efforts on site for many months before Plaintiffs filed their

action or sought a stay of well activities.

{¶55} Appellants assert that no evidence exists in the record to support the court’s

findings as the court took no testimony nor heard any evidence of prejudice to Brown or

significant construction efforts.

{¶56} The trial court did not abuse its discretion in finding that Appellee Brown

was significantly prejudiced by Appellants’ actions. As pointed out by Appellee Brown,

Mr. Brown’s affidavit was part of the record and Appellee Brown reattached that affidavit

to its brief on standing and mandamus. Accordingly, it was part of the record. The length

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of time that this case remained pending and Appellants’ untimely filing for leave to amend

the complaint suffices to find that the trial court did not abuse its discretion in finding that

Appellants’ untimeliness caused significant prejudice to Appellee Brown.

MOOTNESS

{¶57} Mertz and Brown also contend that Appellants’ claims are moot. The trial

court made this determination as an alternative finding. They note that Appellants do not

challenge the trial court’s determination that their claims are moot and they compare

mootness in this case to the mootness doctrine applied in Ohio for construction cases.

They cite State ex rel. Gaylor, Inc. v. Goodenow, 2010-Ohio-1844, ¶ 10 (quoting Los

Angeles Cty. v. Davis, 440 U.S. 625, 631 (1979)), where the Ohio Supreme Court held

that if a party challenging a construction project “fails to obtain a stay of the construction

pending judicial resolution of its claims, and construction commences, the action will be

dismissed as moot.” Mertz and Brown maintain that this doctrine also applies in

mandamus cases. See State ex rel. Wood v. City of Rocky River, 2021-Ohio-3313, ¶ 13-

15.

{¶58} Applying this doctrine in the instant case, Mertz and Brown assert that the

Appellants waited over four months after the permit was issued to challenge construction

of the injection well and then waited another four months before filing the motion for

preliminary injunction to stop construction. They submit that these circumstances support

the trial court’s proper dismissal of Appellants’ complaint and motion for preliminary

injunction. The court reasoned that during this passage of time, Brown operated as if it

had a legal permit and began substantial construction for the well. They note that Brown

operated for almost 11 months under the permit before the preliminary injunction was

granted.

{¶59} In reply, Appellants assert that their claims are not moot. They contend that

the Wood case is inapposite because unlike the plaintiff there, they never received notice

from the ODNR or Brown that the permit had been issued, and the trial court had no

evidence before it to conclude that construction was “substantially underway.”

{¶60} The trial court first addressed the propriety of a mandamus claim and

standing, but also held that even if Appellants overcame those barriers, their claims were

Case No. 24 MO 0002

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moot. The court cited the Ohio Supreme Court’s holding in Goodenow that “‘a case is

moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable

interest in the outcome.” Goodenow, 2010-Ohio-1844, at ¶ 10, quoting Davis, 440 U.S.

at 631. The court further quoted the Ohio Supreme Court’s holding in Goodenow that if

a party in a construction case “fails to obtain a stay of the construction pending judicial

resolution of its claims challenging the decision, and construction commences, [that

party’s] action will be dismissed as moot.” Id. at ¶ 11.

{¶61} The trial court found that the mootness doctrine applied to mandamus cases

and upon comparing the instant case to Goodenow, it found that six days after the permit

was issued to Brown, Appellants had actual notice of the permit and still waited four

months to challenge construction of the well and then waited another four months before

filing for a preliminary injunction to stop construction. The court held that Brown operated

as if it had a lawful permit and performed “substantial construction efforts” for the well

under that permit. The court concluded that Appellants’ challenge to the permit was moot

because they waited over 8 months after construction and foundation work had begun

before they sought to stay the permit.

{¶62} Since we affirm the trial court’s decision for other reasons, we decline to

address mootness.

{¶63} For these reasons, Appellants’ first, third, and fourth assignments of error

are without merit and are overruled. We decline to address their second assignment of

error.

Waite, J., concurs.

Dickey, J., concurs.

Case No. 24 MO 0002

[Cite as Bone v. K.A. Brown Oil & Gas, L.L.C., 2024-Ohio-5044.]

For the reasons stated in the Opinion rendered herein, Appellants’ first, third, and

fourth assignments of error are overruled. We decline to address Appellant’s second

assignment of error. It is the final judgment and order of this Court that the judgment of

the Court of Common Pleas of Monroe County, Ohio, is affirmed. Costs to be taxed

against the Appellants.

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.