Blog

Recent Blog Posts

• Ohio Court of Appeals determines due diligence to find heirs under Marketable Title Act and service by publication were sufficient to uphold default judgment 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... More
• Religious Freedom Restoration Act claims against FERC-regulated pipeline must be presented initially to FERC, regardless of damages sought 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... More
• Plaintiff lessors bear burden of proof in royalty breach claim 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... More
• Ohio Dormant Mineral Act claim may waive attorney-client privilege 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... More
• Does “other minerals” language in Ohio deeds include oil and gas? It depends. 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... More
• “Stranger to the deed” not a defense to rights of first refusal in West Virginia 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.... More
• “At the wellhead” royalty language authorizes net-back method in Pennsylvania 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... More
• Pennsylvania Supreme Court holds abandonment analysis improper where oil and gas lease provided remedies for conduct at issue 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... More
• Court holds recording of deeds starts statute of limitations running 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... More
• Pennsylvania’s UTPCPL does not apply to acquiring oil and gas leases from property owner 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... More