The Ohio Court of Appeals for the Seventh District recently affirmed the entry of default judgment on a Marketable Title Act claim in 4 Quarters, LLC v. Hunter, finding that the due diligence to locate heirs was sufficient and service by publication was appropriate. In this case, the defaulted defendant sought to vacate the judgment entered against him (which reunited the severed oil and gas estate with the surface estate), claiming the trial court erroneously permitted service by publication and claiming the plaintiff failed to exercise reasonable diligence in attempting to locate the heirs ..read more

Relying on a 2018 decision from the United States Court of Appeals for the Third Circuit, a Pennsylvania district court reaffirmed that Religious Freedom Restoration Act (RFRA) claims against a Federal Energy Regulatory Commission (FERC)-regulated pipeline must be made initially to FERC.  Adorers of the Blood of Christ v. Transco. Gas Pipe Line Co. Interplay between FERC and RFRA The plaintiff religious organization claimed FERC’s approval of a pipeline through its property violated RFRA, entitling plaintiff to monetary damages. But the plaintiff failed to raise the RFRA claim in the FERC ..read more

In the Tennant v. Range Res. Appalachia decision issued on Sept. 21, 2021, Judge Hardy of the Western District of Pennsylvania determined that unless an oil and gas lease expressly shifted the burden to the defendant lessee, the plaintiff lessors bore the burden of proof on their claim of underpaid royalties. Royalty addendum provision Plaintiff lessors in Tennant brought a breach of contract claim against defendant lessee claiming underpayment of royalty payments because the lessee was deducting certain post-production expenses. The royalty addendum provision generally prohibited the deductio ..read more

In the camp of be careful how you plead and intend to prove a claim, those asserting an Ohio Dormant Mineral Act (ODMA) claim should pay careful attention to their pleading so as not to waive the attorney-client or attorney work product privileges. As the plaintiffs in Riccardi v. Jackson found out, waiver is a real possibility. Monroe County ODMA claim The complaint at issue sought a declaration that the previously-severed oil and gas rights had been abandoned. To support that claim, the plaintiff alleged, among other things: they hired a lawyer to determine whether any Savings Events under ..read more

Earlier this year, Ohio’s Court of Appeals for the Seventh District weighed in on the question of whether “other minerals” in a deed included oil and gas. The answer is, essentially, it depends. The presumption under Ohio law is that “other minerals” in deeds does include oil and gas, but that presumption can be overcome. In reaching that conclusion in O’Brandovich v. Hess Ohio Devs., LLC, the Court of Appeals walked through and provided the rationale behind the facts and outcomes of what it viewed as the major cases developing the presumption Detlor v. Holland Gordon v. Carter Oil, Co. Harde ..read more

In a June 4, 2021, decision, the West Virginia Supreme Court of Appeals determined that the defense of “stranger to the deed” did not apply to invalidate rights of first refusal contained in deeds in West Virginia. The common law concept of “stranger to the deed,” with feudal roots, invalidates any deed reservation or exception in favor of someone not identified as a grantor or grantee in that deed. For example, if a deed from grantor “Mr. Smith” to grantee “Ms. Jones” attempted to except and reserve all oil and gas rights in “Col. Drake,” that exception/reservation would not be valid and the ..read more

Giving the Pennsylvania Supreme Court’s Kilmer decision broad construction, Judge William Stickman of the District Court for the Western District of Pennsylvania granted the lessees’ motion to dismiss and issued a decision affirming that royalty language containing the phrase “at the wellhead” permits the lessee to use the net-back method and deduct post-production expenses. Rejecting the lessor’s argument that Kilmer should be limited to cases involving Pennsylvania’s Guaranteed Minimum Royalty Act, the court concluded that “Kilmer cannot be read so narrowly as to ignore the fact that it inte ..read more

In a six-to-one decision, the Pennsylvania Supreme Court reversed the lower courts and held that a decision finding an oil and gas lease to be abandoned pursuant to the equitable doctrine of abandonment was improper where the lease provided remedies for the allegedly-wrongful conduct of the lessee. “Analysis of the trial court and Superior Court opinions in this case reveals an essential initial step was skipped to determine whether the case properly sounded in equity as to be resolvable employing the equitable doctrine of abandonment. ‘Injunctive relief will lie where there is no adequate rem ..read more

Recently, the United States District Court for the Western District of Pennsylvania relied on the statute of limitations to dismiss claims related to allegedly improper transactions involving real estate. Although the statute of limitations is an affirmative defense, it can be asserted in a motion to dismiss if the defense clearly appears on the face of the complaint and the complaint demonstrates that the claims were filed beyond the applicable time period. In this case (PR Liquidating Trust v. W. Land Servs.), the defendants relied on the statute of limitations to seek dismissal of a 2020 la ..read more

In a decision issued March 24, 2021, all seven of Pennsylvania’s Supreme Court justices agreed (in a split decision) that Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (UTPCPL) can be enforced only against sellers. In so concluding, the six-justice majority then determined that oil and gas companies are not “sellers” under the UTPCPL when they acquire oil and gas leases from property owners. Case background The case arose out of a lawsuit brought by the Pennsylvania Attorney General on behalf of Pennsylvania citizens against two oil and gas companies for allegedly improper ..read more