Long Point Energy, LLC v. Gulfport Energy Corporation et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LONG POINT ENERGY, LLC,
Plaintiff,
v.
GULFPORT ENERGY
CORPORATION, et al.,
Defendants.
:
:
Case No. 2:20-cv-4644
Judge Sarah D. Morrison
Magistrate Judge Kimberly A.
Jolson
OPINION AND ORDER
This matter is before the Court after the Sixth Circuit Court of Appeals
reversed this Court’s grant of summary judgment in favor of the Perkins
Defendants1 and the Lessee Defendants2 on the claims and counterclaims regarding
the oil and gas rights underlying a 165-acre tract of land in Belmont County, Ohio.
That 165-acre tract of land is split between two parcels: a 163.5-acre tract and a
1.15-acre tract. Long Point has abandoned its claims related to the 1.15-acre tract,3
1 Perkins Defendants are Michael A. Perkins, Jill E. Perkins, Mitchell G.
Perkins, Dedra D. Perkins, Phillip J. Perkins, Jackie M. Perkins, Nancy L.
Garrison, and Robert Garrison.
2 Lessee Defendants are Rice Drilling D LLC, Gulfport Energy Corporation,
and Gulfport Appalachia LLC.
3 As a result of this abandonment (ECF No. 175, PAGEID# 5050, n. 3),
summary judgment is GRANTED to the Perkins Defendants on their Counterclaim
Counts I, II, and VI to the extent those claims are based on the 1.15-acre tract, to
the Lessee Defendants on their Counterclaim Counts III–IV, and to all Defendants
on Long Point’s Counts I–II and V–X to the extent those claims are based on the
1.15-acre tract.
Case: 2:20-cv-04644-SDM-KAJ Doc #: 195 Filed: 02/11/26 Page: 1 of 27 PAGEID #: <pageID>

2
so the 163.5-acre tract (hereinafter “the Subdivision”) is the only parcel remaining
at issue.
The parties have agreed to bifurcate the issues of ownership and damages.
They have now cross-moved for summary judgment on the ownership issues. Also
before the Court is a Joint Motion to Dismiss and Long Point’s Motion to Strike. The
motions are fully briefed and ripe for consideration.
I. STATEMENT OF FACTS
The full factual background was set out in this Court’s March 2023 Order.
(ECF No. 133.) The facts relevant to ownership of the oil and gas rights underlying
the Subdivision are set forth below.
A. The Subdivision’s surface rights were sold in 1948 with a
reservation of the oil and gas rights.
In 1948, Bertha Freudiger conveyed the Subdivision’s surface rights to Glenn
and Ruth Perkins but reserved “all of the oil and gas and the right of leasing the
same, together with customary surface privileges.” (1948 Deed, ECF No. 103-8);
Long Point Energy, LLC, 2025 WL 76249, at *3. That reservation is referred to as
the “Freudiger Reservation.” The Subdivision’s surface rights were then transferred
several times within the Perkins family; each transfer reserved the oil and gas
rights underlying the Subdivision using the same language as the 1948 Deed.4
The Freudiger Reservation also went through several transfers. When Ms.
Freudiger died testate in 1962, she left the residue of her estate (including the
4 Each transfer was recorded and is included in the record. (See, e.g., 1948
Deed; 1968 Deed, ECF No. 103-69; 1971 Deed, ECF No. 103-68; 1991 Deed, ECF No.
103-2; 1999 Deed, ECF No. 103-3; 2003 Deed, ECF No. 103-4.)
Case: 2:20-cv-04644-SDM-KAJ Doc #: 195 Filed: 02/11/26 Page: 2 of 27 PAGEID #: <pageID>

3
Freudiger Reservation) to her daughter Martha Estell Zigler.5 (ECF No. 99-11.)
After the deaths of Martha Zigler and one of her children, Ruth Kissinger and Gene
Zigler each inherited a one-third interest in the Freudiger Reservation, and Delores
Drabenstott, Paul Hershey, and Larry Hershey each inherited a one-ninth interest
(collectively, the “Freudiger Heirs”). (ECF Nos. 99-14 and 99-15.) Long Point
purchased the Freudiger Reservation from the Freudiger Heirs in 2019, as reflected
in several deeds that were backdated to 2013. (Long Point Deeds, ECF No. 107-1,
Exhibits A-1 through A-5.)
B. In 2013, the Perkins Defendants purported to lease the
Subdivision’s oil and gas rights to Rice Drilling and Gulfport.
On May 24, 2013, the Perkins Defendants leased the Subdivision’s oil and gas
rights to Rice Drilling. (ECF No. 1-3, Ex. W; ECF No. 103-39.) Around that time,
Rice Drilling acknowledged in an internal title document that the Freudiger
Reservation “needs [Ohio Dormant Mineral Act].” (ECF No. 176-2.) And after
entering the lease, an attorney for Rice Drilling noted that the “[l]essor will need to
seek outside legal counsel to pursue reclaiming the oil and gas from heirs and
assigns of Bertha E. Freudiger.” (ECF No. 176-4.) Rice Drilling advised the Perkins
Defendants of its conclusion and recommended they seek an attorney to merge the
reserved oil and gas rights with their surface rights. (ECF No. 117-2.)
In 2014, prior to obtaining any interest in the lease, Gulfport received a title
opinion that also concluded that there was a question regarding the ownership of
5 Probate records for Ms. Zigler were filed in Medina County but were not
filed in Belmont County until 2020. (Yoss Depo, ECF No. 99, PAGEID # 1404.)
Case: 2:20-cv-04644-SDM-KAJ Doc #: 195 Filed: 02/11/26 Page: 3 of 27 PAGEID #: <pageID>

4
the Freudiger reservation, advising: “Out of an abundance of caution you should
confirm through inquiry that the unknown heirs, devisees and/or assigns of Bertha
E. Freudiger are not claiming a mineral interest in the subject parcel.” (ECF No.
103-29, PAGEID# 2762.)
Rice Drilling subsequently revised its internal title opinion to find that the
Freudiger Reservation was abandoned. It says that it made this revision because, at
the time, the effect of Ohio’s Dormant Mineral Act (“DMA”) was “unsettled.” (ECF
No. 103-23.) In 2014, the Ohio Seventh District Court of Appeals issued a decision
concluding that the 1989 DMA (1) automatically vested interest of unused mineral
rights to surface owners after 20 years, and (2) applied to any interest that
automatically vested unused mineral rights to a surface owner after March 22,
1992. Walker v. Shondrick-Nau, No. 13 NO 402, 2014 WL 1407942 (Ohio App. Ct.).
However, the Ohio Supreme Court later overturned the Seventh District’s decision,
holding that the 2006 DMA (not the 1989 version) applied to any abandonment
claims brought after June 30, 2006, and that the 1989 DMA was not self-executing
(meaning it did not automatically transfer abandoned mineral rights to the surface
owner). Walker v. Shondrick-Nau, 74 N.E.3d 427 (Ohio 2016).
Nonetheless, Rice Drilling assigned 51.84% of its purported interest in the
leases to the Subdivision to Gulfport. (ECF Nos. 103-25, 103-26, 103-27, 103-28.)
Fourteen oil wells were constructed to produce oil and gas in 2014 and 2015, and
they began producing in 2016. (ECF No. 103-74.)
Case: 2:20-cv-04644-SDM-KAJ Doc #: 195 Filed: 02/11/26 Page: 4 of 27 PAGEID #: <pageID>

5
C. Long Point files this litigation.
Less than a year after Long Point recorded its deed for the Freudiger
Reservation, it filed this suit. Its claims regarding the Subdivision remain:
Count I–II: Declaratory Judgment and Quiet Title against all Defendants
Count V: Trespass against Lessee Defendants
Count VI: Conversion against Lessee Defendants
Count VII–VIII: Waste against Lessee Defendants
Count IX: Accounting of Rents and Profits against Lessee Defendants6
Count X: Unjust Enrichment against Lessee Defendants7 and Equitable
Disgorgement against all Defendants
The Perkins Defendants’ counterclaims and a crossclaim regarding the
Subdivision that remain are:
Count I: Declaratory Judgment against Long Point
Count II: Declaratory Judgment under Ohio’s Marketable Title Act
(“MTA”) against Long Point
Count VI: Quiet Title against Long Point
Count VII: Indemnification against Lessee Defendants
Lessee Defendants’ counterclaims against Long Point that remain are:
Count I–II: Declaratory Judgment and Quiet Title (163.5-acre tract)
Against Long Point
6 Long Point abandoned its Accounting Claim against the Perkins Defendants
in the instant summary judgment briefing. (ECF No. 175, PAGEID# 5099, n. 8.)
7 Long Point also abandoned its unjust enrichment claim against the Perkins
Defendants. (ECF No. 175, PAGEID# 5102, n. 9.)
Case: 2:20-cv-04644-SDM-KAJ Doc #: 195 Filed: 02/11/26 Page: 5 of 27 PAGEID #: <pageID>

6
II. JOINT MOTION TO DISMISS
The Perkins Defendants and Gulfport Energy Corporation and Gulfport
Appalachia, LLC (together, “Gulfport”) jointly move to dismiss “Crossclaims Count
I–V asserted by the Perkins Defendants against Gulfport[.]” (ECF No. 190,
PAGEID# 5657.) But the Perkins Defendants did not assert Counts I–V against
Gulfport.
The Perkins Defendants’ and Gulfport’s’ Joint Motion to Dismiss is thus
DENIED as moot.
III. MOTION TO STRIKE
“Motions to strike are viewed with disfavor and are not frequently granted.”
Operating Engineers Loc. 324 Health Care Plan v. G&W Const. Co., 783 F.3d 1045,
1050 (6th Cir. 2015). Even so, Long Point seeks to strike a map, two footnotes, a
“legend,” and two exhibits filed by the Lessee Defendants in their reply brief (ECF
No. 183), as well as the exhibits Lessee Defendants filed contemporaneously with
their Notice of Refiling Exhibits (ECF No. 188). (See Motion to Strike, ECF No. 189,
PAGEID# 5649.) Long Point argues that this evidence was improperly raised for the
first time in a reply memorandum and it is otherwise inadmissible.
Arguments raised for the first time on reply are generally considered waived
because the opposing party is not afforded a response. See Scottsdale Ins. Co. v.
Flowers, 513 F.3d 546, 553 (6th Cir. 2008). But that was not the case here. Long
Point filed a Reply in Support of its own Motion for Summary Judgment after
Lessee Defendants filed their combined Response in Opposition to Long Point’s
Case: 2:20-cv-04644-SDM-KAJ Doc #: 195 Filed: 02/11/26 Page: 6 of 27 PAGEID #: <pageID>

7
Motion for Summary Judgment and Reply in Support of their own Motion. (ECF No.
187.) In that Reply, Long Point had an opportunity to substantively respond to the
evidence Lessee Defendants’ included in their Reply. Thus, the fairness concerns
typically associated with arguments raised for the first time on reply do not exist
here. To the extent Lessee Defendants “refiled” exhibits after Long Point’s Reply
(ECF No. 188), the Court will not consider those materials for purposes of this
Opinion and Order.
Long Point’s argument that the evidence is inadmissible is equally
unavailing. If any of the evidence Long Point seeks to exclude is irrelevant,
inadmissible, or unverified, the Court will just ignore it. Nat’l Pension Fund v. Ivitts
Plumbing Contractors, Inc., No. 5:12-cv-112, 2014 WL 3905589, *3 (W.D. Ky. Aug.
11, 2014) (“[M]otions to strike are generally disfavored. Rather than striking
material, a court may simply ignore inadmissible evidence.”).
Long Point’s motion to strike is DENIED.
IV. CROSS-MOTIONS FOR SUMMARY JUDGMENT
Summary judgment is appropriate when “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). The movant has the burden of establishing there are no genuine
issues of material fact, which may be achieved by demonstrating the nonmoving
party lacks evidence to support an essential element of its claim. Celotex Corp. v.
Catrett, 477 U.S. 317, 322–23 (1986); Barnhart v. Pickrel, Schaeffer & Ebeling Co.,
12 F.3d 1382, 1388–89 (6th Cir. 1993). The burden then shifts to the nonmoving
Case: 2:20-cv-04644-SDM-KAJ Doc #: 195 Filed: 02/11/26 Page: 7 of 27 PAGEID #: <pageID>

8
party to “set forth specific facts showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (internal quotations
omitted).
When evaluating a motion for summary judgment, the evidence must be
viewed in the light most favorable to the non-moving party. Adickes v. S.H. Kress &
Co., 398 U.S. 144, 157 (1970). On cross-motions for summary judgment, like those
sub judice, courts perform a “hat switch”—in reviewing the defendant’s motion, the
court accepts plaintiff’s view of the facts as true and draws all reasonable inferences
in favor of the plaintiff; but in review of the plaintiff’s motion, the court accepts the
defendant’s view of the facts and draws all reasonable inferences in favor of the
defendant. Harris v. City of Saginaw, Mich., 62 F.4th 1028, 1032–33 (6th Cir. 2023).
“When parties file cross-motions for summary judgment, the making of such
inherently contradictory claims does not constitute an agreement that if one is
rejected the other is necessarily justified or that the losing party waives judicial
consideration and determination whether genuine issues of material fact exist.”
B.F. Goodrich Co. v. U.S. Filter Corp., 245 F.3d 587, 593 (6th Cir. 2001). A genuine
issue exists if the nonmoving party can present “significant probative evidence” to
show that “there is [more than] some metaphysical doubt as to the material facts.”
Moore v. Philip Morris Cos., 8 F.3d 335, 340 (6th Cir. 1993). In other words, “the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248; see also Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 597–98 (1986) (concluding that summary judgment is
Case: 2:20-cv-04644-SDM-KAJ Doc #: 195 Filed: 02/11/26 Page: 8 of 27 PAGEID #: <pageID>

9
appropriate when the evidence could not lead the trier of fact to find for the non-
moving party).
A. Long Point’s Ownership in the Oil and Gas Rights Underlying
the Subdivision
The law of the case here is that the 1948 Deed transferring the Subdivision’s
surface rights excepted the Freudiger Reservation. Long Point Energy, LLC, 2025
WL 76249 at *3. And there is no dispute that Long Point purchased the Freudiger
Reservation. The Defendants raise three arguments in an effort to divest Long
Point of its interest in the Freudiger Reservation: 1) Long Point’s interest is barred
by the doctrines of champerty and maintenance, 2) Long Point’s interest was
extinguished by the MTA, and 3) the Lessee Defendants’ have superior title to Long
Point because they are bona-fide-purchasers for value. The Court addresses each
argument in turn.
1. The doctrines of champerty and maintenance do not
apply.
The doctrines of champerty and maintenance were developed at common law.
Rancman v. Interim Settlement Funding Corp., 789 N.E.2d 217, 220 (Ohio 2003).
“‘Maintenance’ is assistance to a litigant in pursuing or defending a lawsuit
provided by someone who does not have a bona fide interest in the case.” Id. at 219.
“’Champerty’ is a form of maintenance in which a nonparty undertakes to further
another’s interest in a suit in exchange for a part of the litigated matter if a
favorable result ensues.” Id. When the doctrines of champerty and maintenance
apply, the assignment that would otherwise permit an assignee to stand in the
Case: 2:20-cv-04644-SDM-KAJ Doc #: 195 Filed: 02/11/26 Page: 9 of 27 PAGEID #: <pageID>

10
shoes of the assignor is void. Hiles v. NovaStar Mortg., Inc., 2012 WL 4813775, *4
(S.D. Ohio Oct. 10, 2012) (Black, J.).8
Long Point’s actions do not fit the definition of either champerty or
maintenance. It is not assisting a litigant in pursuing a claim—it is the litigant. Nor
is Long Point furthering another’s interest in exchange for a profit of the litigated
matter. It is the only party that stands to profit or otherwise benefit from this
litigation (or to suffer if the litigation goes awry). Long Point purchased the
Subdivision, an assignment of claims, and the accompanying risk.
Nevertheless, Defendants argue that these doctrines apply here because Long
Point searched the public record for arguably abandoned oil and gas interests, found
the Freudiger Reservation, and then paid the Freudiger Heirs a nominal amount for
the interest (which included an assignment of claims) with the sole intent of filing
this action. In support of this argument, Defendants rely on a series of cases from
the Ohio Seventh District Court of Appeals known as the Cardinal cases. (ECF No.
167, PAGEID# 4969; ECF No. 168, PAGEID# 5025.)
In the Cardinal cases, Cardinal Minerals looked for oil and gas interests to
purchase by searching public records for Affidavits of Abandonment under the
DMA, specifically looking for abandonments that were completed by publication and
8 Long Point argues that champerty and maintenance are affirmative
defenses that Defendants waived by not asserting in their respective answers. But
this Court has previously treated these doctrines as a challenge to standing. See
Hiles at *4. Standing is not an affirmative defense that must be preserved to avoid
waiver. See Cmty. First Bank v. Nat’l Credit Union Admin., 41 F.3d 1050, 1053 (6th
Cir. 1994).
Case: 2:20-cv-04644-SDM-KAJ Doc #: 195 Filed: 02/11/26 Page: 10 of 27 PAGEID #: <pageID>

11
not by certified mail. Cardinal Minerals, LLC v. Miller, 246 N.E.3d 71, 75 (Ohio
App. Ct. 2024). Cardinal Minerals then determined whether the subject property
was producing oil or gas and, if so, it attempted to find the heirs to the interest; if it
found the heirs, it purchased the interest (along with the right to sue), and it filed
suit claiming that the abandonment process was invalid. Id. In the cases before it,
the appellate court analyzed the DMA and the deeds for the subject property and
found that the recorded deeds contained a marginal notation indicating that the
severed mineral interest had been abandoned and was no longer effective. Id. at 79.
The heirs to the interest had not sought to challenge the abandonment process so,
under the DMA, the mineral interests had vested in the surface owner of the subject
property. Id. As a result, the appellate court found that the heirs did not own an
interest in the minerals to transfer to Cardinal Minerals; rather, Cardinal Minerals
purchased only the right to file a lawsuit over already abandoned mineral rights.
Id.; see also Cardinal Minerals, LLC v. Miller, 249 N.E.3d 868, 877 (Ohio App. Ct.
2024) (“Consequently, when the Pfalzgraf Heirs conveyed their mineral interests to
Cardinal, they had nothing to quitclaim because they did not own anything of
record.”); Cardinal Minerals, LLC v. Blatt, Nos. 24MO0008, 24MO0009, 24MO0011,
24MO0012, 2025 WL 1010270, *6 (Ohio App. Ct.) (“We found Cardinal sought out
the property interests for the purpose of pursuing litigation despite the fact that
abandonment was evident from the public record.”). The purchasing of a lawsuit
violated champerty and maintenance. 246 N.E.3d at 81.
Case: 2:20-cv-04644-SDM-KAJ Doc #: 195 Filed: 02/11/26 Page: 11 of 27 PAGEID #: <pageID>

12
Here, unlike in Cardinal, the Freudiger Reservation was never the subject of
an abandonment under the DMA or quiet title action. Indeed, the Ohio Seventh
District Court of Appeals has recognized that this distinguishing fact provides an
assignee plaintiff with standing and does not violate champerty or maintenance. See
1803 Res., LLC v. Lineback, Nos. 24MO0019, 24MO0023, 2025 WL 2618986, *18–19
(Ohio App. Ct.).9
The doctrines of champerty and maintenance do not deprive Long Point of
standing.
2. Long Point’s interest was not extinguished by the
Marketable Title Act.
Ohio law provides a marketable record title to a person who has an unbroken
chain of title to any interest in land for at least 40 years. Ohio Rev. Code § 5301.48.
Marketable record title extinguishes interests and claims existing before the
effective date of the root of title. Ohio Rev. Code § 5301.47(A).
To determine whether the MTA provides a marketable title, a court begins by
locating the root of title. The root of title is the most recent conveyance or other title
transaction in the chain of title that purports to create an interest in a person and
was recorded at least forty years before the date when marketability is being
9 In 1803 Resources, the assignee plaintiff purchased oil and gas interests that
were never the subject of a DMA abandonment or quiet title action. Id. at *17.
Rather, the surface owners of the property claimed the oil and gas rights were
extinguished under the MTA. But when mineral rights are extinguished under the
MTA, nothing is filed of record because the extinguishment occurs as a matter of
law after the passage of time. Nothing in the source instrument acquired by
assignee plaintiff indicated that it was not acquiring a legally recognized interest in
the mineral rights.
Case: 2:20-cv-04644-SDM-KAJ Doc #: 195 Filed: 02/11/26 Page: 12 of 27 PAGEID #: <pageID>

13
determined. Ohio Rev. Code § 5301.47(E). The effective date of the root of title is the
date on which it is recorded. Id.
Once the root of title is identified, a three-step inquiry must be conducted to
determine whether any interests that predated the root of title were preserved: 1) is
there an interest included in the root of title that describes a previously recorded
interest within the chain of title? 2) if so, is the reference to that interest a “general
reference”? and 3) if the answer to the first two questions is yes, does the general
reference contain a specific identification of a recorded title transaction? Erickson v.
Morrison, 176 N.E.3d 1, 5 (Ohio 2021) (citing Blackstone v. Moore, 122 N.E.3d 132
(Ohio 2018)). The term “general reference” is undefined under the MTA, so courts
apply the ordinary meaning of “general,” which “is defined as ‘marked by broad
overall character without being limited, modified, or checked by narrow precise
considerations[.]’” Id. If there is a specific reference to an interest contained in the
root of title, it is preserved. But if it is general reference, then the court looks to
whether it contains a specific identification of a previously recorded title
transaction.
Here, the root of title is the 1971 Deed transferring the surface rights from
Glenn Perkins to Arthur Perkins and to a trust for the benefit of Linda Perkins.
(1971 Deed, ECF No. 103-68.)
Turning to the MTA’s three-step inquiry, the Perkins Defendants do not
dispute that the 1971 Deed identifies an oil and gas reservation, so the answer at
step one is yes.
Case: 2:20-cv-04644-SDM-KAJ Doc #: 195 Filed: 02/11/26 Page: 13 of 27 PAGEID #: <pageID>

14
As for the second step, the 1971 Deed contains a specific reference. As the
Ohio Supreme Court has concluded, the MTA does not require that the reservation
specify the interest’s owner or a reference to the volume and page number where
the interest was created to be a specific refence. Erickson, 176 N.E.3d at 81–82.
Rather, if the title contains an identifiable reservation of mineral rights that can be
determined through a reasonable title search, the reservation is a specific
reservation. Id. at 76. Here, the 1971 Deed contains the same specific, identifiable
reservation of oil and gas rights throughout the chain of title dating back to the
deed that created the reservation. (Compare 1948 Deed, ECF No. 103-8, with 1971
Deed, ECF No. 103-68.) The 1971 Deed’s reference to the Fruediger Reservation is
sufficient to preserve the interest from being extinguished under the MTA.
3. Lessee Defendants are not entitled to a Bona-Fide-
Purchaser for Value defense.
The Lessee Defendants contend that, irrespective of Long Point’s interest in
the Freudiger Reservation, they own their leasehold free and clear as bona fide
purchasers for value (“BFPs”). A BFP “is one who acquires legal title to real estate
for valuable consideration, in good faith, and without knowledge or notice of
another’s equitable interest in that property.” Ford v. Baska, 93 N.E.3d 195, 198
(Ohio App. Ct. 2017). To qualify, a BFP must 1) acquire legal title, and 2) have no
actual or constructive knowledge of another’s interest. Id. Lessee Defendants’ claim
that they are BFPs fails on the first element, so the Court need not address the
second.
Case: 2:20-cv-04644-SDM-KAJ Doc #: 195 Filed: 02/11/26 Page: 14 of 27 PAGEID #: <pageID>

15
The fact that the Lessee Defendants never acquired legal title is
straightforward—the Perkins Defendants never had it to transfer. Trying to avoid
this result, Lessee Defendants’ only argument is that, in 2013 when Rice Drilling
leased the oil and gas rights from the Perkins Defendants, the DMA’s effect on the
Freudiger Reservation was unsettled and “rapidly evolving.” At that time, the Ohio
Supreme Court had not ruled on when the 1989 DMA or the 2006 DMA applied to a
claim of abandonment, or whether the 1989 DMA was self-executing. (ECF No. 168,
PAGEID# 5018.)10 So, in the absence of an Ohio Supreme Court decision, Rice
Drilling claims that it reasonably thought that the Freudiger Reservation was
abandoned. But that the law was unsettled is insufficient to vest legal title to the
Freudiger Reservation in the Perkins Defendants. As such, there was no interest for
the Lessee Defendants to lease from the Perkins Defendants. See, e.g., KMAG
Holdings Group, Inc. v. J. Phillip Chubb Ins. Agency, No. 1:15-cv-66, 2016 WL
815604, *3 (N.D. Ohio Mar. 2, 2016) (“[I]t is axiomatic that an owner cannot
transfer to a purchaser that which it does not own.”).
Lessee Defendants have failed to establish that they are entitled to a BFP
defense.
10 When the Ohio Supreme Court acted in 2016, it ruled against the Lessee
Defendants’ position, holding that the 2006 DMA applies to all claims for
abandonment asserted after June 30, 2006, and that the 1989 DMA does “not
automatically transfer ownership of dormant mineral rights by operation of law.”
Corban v. Chesapeake Expl., L.L.C, 76 N.E.3d 1089, 1097–98 (Ohio 2016).
Case: 2:20-cv-04644-SDM-KAJ Doc #: 195 Filed: 02/11/26 Page: 15 of 27 PAGEID #: <pageID>

16
4. Long Point is entitled to summary judgment on its
declaratory judgment and quiet title claims.
In sum, Defendants’ arguments attempting to divest Long Point of its
interest in the Freudiger Reservation fail as a matter of law. The doctrines of
champerty and maintenance do not apply. The MTA did not extinguish the
Freudiger Reservation. And Lessee Defendants are not bona fide purchasers of the
mineral rights of the Subdivision. Summary judgment is GRANTED to Long Point
on its Counts I and II, in favor of Long Point on the Perkins Defendants’ Counts I,
II, and VI (declaratory judgment and quiet title), and in favor of Long Point on the
Lessee Defendants’ Counts I and II (declaratory judgment and quiet title).
Summary judgment is DENIED to all the Defendants on these claims to the same
extent.
B. Long Point’s Remaining Claims and Defendants’ Affirmative
Defenses
As an alternative to their efforts to invalidate Long Point’s ownership of the
Freudiger Reservation, the parties seek summary judgment on various legal or
equitable grounds that Defendants argue limit or bar Long Point’s claims relating
to the Subdivision.11 Specifically, all Defendants argue that Long Point’s claims for
11 Long Point argues in the alternative that the Court should not address
these issues as part of the current summary judgment briefing because the parties
bifurcated the case, and they have not yet conducted damages discovery. (ECF No.
176, PAGEID# 5139.) Long Point claims that it needs discovery of documents
related to production by the subject wells, drilling and completion procedures, and
operators’ conduct. (Id., PAGEID# 5140.) However, the issues addressed in this
Section are not issues of damages; none of the discovery that Long Point says it
needs would change the Court’s analysis of the issues addressed herein. A ruling
now could limit the scope of the damages discovery.
Case: 2:20-cv-04644-SDM-KAJ Doc #: 195 Filed: 02/11/26 Page: 16 of 27 PAGEID #: <pageID>

17
damages are barred by laches; Lessee Defendants argue that they should not be
held liable for production of oil and gas from the Freudiger Reservation before
March 1, 2019; Lessee Defendants argue they are entitled to judgment as a matter
of law on Long Point’s claims for trespass, conversion, and waste; and Perkins
Defendants argue that equitable disgorgement is a remedy, not a claim.12 The Court
addresses these arguments seriatim.
1. Laches
The parties move for summary judgment on whether Long Point’s claims are
barred by the doctrine of laches.
Under Ohio law, “[t]he elements of laches are (1) unreasonable delay or lapse
of time in asserting a right, (2) absence of an excuse for the delay, (3) knowledge,
actual or constructive, of the injury or wrong, and (4) prejudice to the other party.”
State ex rel. Polo v. Cuyahoga Cty. Bd. of Elections, 656 N.E.2d 1277, 1279 (Ohio
1995). “All four elements must exist for laches to apply.” Menges v. Strunk, 262
N.E.3d 1091, 1101 (Ohio App. Ct. 2025). As for the fourth element, “[t]he party
invoking the doctrine must show the delay caused material prejudice.” Id. Material
prejudice may involve a good faith change of position in reliance on the other party’s
inaction, the acquisition of rights by innocent parties, the loss of essential evidence,
12 The Perkins Defendants also argue that the are entitled to summary
judgment on Long Point’s accounting claim (Count IX) and unjust enrichment claim
(Count X). But Long Point is not pursuing either of these claims against the Perkins
Defendants. (ECF No. 175, PAGEID# 5099, n. 8 and PAGEID# 5102, n. 9.) Thus,
the Perkins Defendants Motion for Summary Judgment is GRANTED on these
issues.
Case: 2:20-cv-04644-SDM-KAJ Doc #: 195 Filed: 02/11/26 Page: 17 of 27 PAGEID #: <pageID>

18
or the expenditure of money or incurring of obligations upon belief of possession of a
clear or unencumbered right. Ellis v. Patonai, No. 06CA0012, 2006 WL 2788562, *3
(Ohio App. Ct.). “What constitutes material prejudice is primarily a question of fact
to be resolved through a consideration of the special circumstances of each case.”
State ex rel. Doran v. Preble Cty. Bd. of Commrs., 995 N.E.2d 239, 246 (Ohio App.
Ct. 2013).
The Court begins and ends its analysis with the fourth element because none
of the Defendants have satisfied their burden to show that they were prejudiced by
any delay in the pursuit of claims related to the Freudiger Reservation.
As for the Perkins Defendants, they argue that they were prejudiced because,
had the Freudiger Heirs brought their claim sooner, there would be no claim for
damages against them. Or, put another way, the Perkins Defendants argue they
were prejudiced by being permitted to unlawfully assert ownership over the
Freudiger Reservation for too long. But “[d]elay in asserting a right does not of itself
constitute laches[.]” Thirty-Four Corp. v. Sixty-Seven Corp., 474 N.E.2d 295, 298
(Ohio 1984). The Perkins Defendants ignore that Rice Drilling warned them that
the title might be defective, yet they never initiated abandonment procedures or
otherwise attempted to ameliorate any risk of prejudice. Rather, the Perkins
Defendants chose to hope and rely on the Freudiger Heirs’ delay, risking one day
facing the situation in which they now find themselves.
For their part, the Lessee Defendants argue that they are prejudiced because
they expended substantial money and incurred obligations based upon a belief of
Case: 2:20-cv-04644-SDM-KAJ Doc #: 195 Filed: 02/11/26 Page: 18 of 27 PAGEID #: <pageID>

19
possession of a clear or unencumbered right. But they have not shown that they
reasonably believed the Perkins Defendants had a clear or unencumbered right to
lease them the Freudiger Reservation. As discussed above, that there is a
reservation of oil and gas rights was clear on the Perkins Defendants’ title. Rice
Drilling acknowledged the Freudiger Heirs’ possible interest in several internal title
documents based on the publicly available record of title. Gulfport also recognized
that there was a question regarding title before it obtained its interest in the
Subdivision. But the Lessee Defendants did nothing to notify the Freudiger Heirs or
to otherwise clear the title. Any prejudice experienced by Lessee Defendants was of
their own making.13
There are no grounds for a reasonable jury to find that any of the Defendants
were prejudiced by any alleged delay in either the Freudiger Heirs or Long Point
asserting their rights to the Freudiger Reservation. Defendants’ Motions for
Summary Judgment are DENIED and Long Point’s Motion for Summary Judgment
is GRANTED on laches.
2. Liability for Production Before March 1, 2019
Lessee Defendants next argue that, even if the Court finds in Long Point’s
favor on the ownership of the Freudiger Reservation, they are not liable to Long
Point for any production that occurred before March 1, 2019 for three reasons: 1)
Long Point cannot recover for oil and gas production occurring before the date its
13 To the extent Lessee Defendants argue they had a good faith belief of
possession of a clear or unencumbered right because the law was unsettled, their
argument fails for the same reason it fails in support of their BFP defense.
Case: 2:20-cv-04644-SDM-KAJ Doc #: 195 Filed: 02/11/26 Page: 19 of 27 PAGEID #: <pageID>

20
first deed was delivered (March 1, 2019); 2) the Freudiger Heirs did not validly
assign their claims that existed before March 1, 2019; and 3) the backdated effective
date on the deeds is void because Long Point did not exist as a legal entity as of the
effective date. The second issue, whether the Freudiger Heirs validly assigned all
their claims to Long Point, is dispositive of all three issues, so the Court starts
there.
Under Ohio law, rights or claims incident to the possession of property are
distinguished from personal rights or claims that remain with the seller. Cheatham
I.R.A. v. Huntington Nat’l Bank, 137 N.E.3d 45, 51 (Ohio 2019). Personal rights or
claims are known as a “chose in action.” Id. “Ohio has long permitted the
assignment of a chose in action to a third party.” Id. at 52. Such an assignment is a
contract, which must include an unambiguous manifestation by the assignor “to
transfer the right to the assignee.” Herr v. U.S. Forest Serv., 803 F.3d 809, 821 (6th
Cir. 2015) (cleaned up).
Each deed from the Freudiger Heirs to Long Point contained the same
assignment of claims:
[T]ogether with all of Grantor’s executive rights appurtenant thereto
and the right of ingress and egress to the surface of the Property for all
purposes associated with the ownership of said oil & gas minerals,
including, but not limited to, Grantor’s (i) right to receive future
bonuses, rents, and royalties attributable to said oil & gas minerals;
(ii) interest in all claims against third parties attributable to
said oil & gas minerals; and (iii) interest in all third party
warranties or guaranties, if transferable, relating to the Property.
Case: 2:20-cv-04644-SDM-KAJ Doc #: 195 Filed: 02/11/26 Page: 20 of 27 PAGEID #: <pageID>

21
(See, e.g., ECF No. 1-1, PAGEID# 76. (emphasis added).) This language is
unambiguous: Long Point was assigned all claims related to the oil and gas
underlying the Subdivision.
Lessee Defendants argue that it is “impossible” to determine whether Long
Point has been assigned title claims, tort claims, contract claims, or a combination
thereof, apparently ignoring the word “all” as the adjective describing “claims.” The
Freudiger Heirs assigned to Long Point “all claims.”
Lessee Defendants next argue that “attributable to said oil & gas minerals” is
ambiguous because Long Point’s claims for trespass, conversion, and unjust
enrichment are more properly viewed as “attributable” to their alleged wrongdoing
than to “oil and gas minerals.” But this argument ignores the fact that the
wrongdoing alleged in those three claims would not exist without the oil and gas
minerals. In other words, the claims are “attributable” to Lessee Defendants’
development and production of the oil and gas minerals.
Long Point’s Motion for Summary Judgment on this point is GRANTED and
Lessee Defendants’ Motion for Summary Judgment is DENIED.
3. Trespass and Conversion
Lessee Defendants also argue that they are entitled to partial summary
judgment on Long Point’s trespass and conversion claims.14 Specifically, they argue
14 Lessee Defendants initially moved for summary judgment as to Long
Point’s conversion claim based on the statute of limitations. (ECF No. 168,
PAGEID# 5035.) They abandoned this argument in their Reply. (ECF No. 183,
PAGEID# 5580, n 3.)
Case: 2:20-cv-04644-SDM-KAJ Doc #: 195 Filed: 02/11/26 Page: 21 of 27 PAGEID #: <pageID>

22
that four of the eight wells at issue do not traverse the Subdivision, so Long Point
cannot prove that trespass or conversion occurred. They also argue that to the
extent Long Point seeks to recover for a claim of conversion as to wells that do not
traverse the Subdivision, the rule of capture applies.
However, the trespass and conversion claims are general claims; they are not
specific to individual wells. Lessee Defendants’ argument is thus inextricably
intertwined with damages (i.e., the quantity of production for the wells alleged to
traverse the Subdivision). And because damages discovery has not yet been
conducted, it would be premature to parse the wells that may or may not impinge
on the Subdivision.
Lessee Defendants’ Motion for Summary Judgment on Long Point’s Counts V
and VI is DENIED.
4. Waste
Lessee Defendants move for summary judgment on Long Point’s waste claim.
They argue that, if Long Point is the sole owner of the Subdivision, it cannot assert
a claim for waste.
Under Ohio law, one owner or tenant of land may maintain a waste action
against a co-owner. Ohio Rev. Code § 5307.21. But waste claims are only viable
between cotenants. Id. Long Point concedes that its waste claim requires that
Lessee Defendants have a lawful possessory interest in a portion of the oil and gas
rights underlying the Property. (Compl. ¶ 125, ECF No. 1, PAGEID# 31.)
Case: 2:20-cv-04644-SDM-KAJ Doc #: 195 Filed: 02/11/26 Page: 22 of 27 PAGEID #: <pageID>

23
Because Long Point owns 100% of the oil and gas rights underlying the
Subdivision, its waste claim fails as a matter of law. Summary judgment is
GRANTED in favor of the Lessee Defendants as to Long Point’s Counts VII and
VIII.
5. Equitable Disgorgement
Perkins Defendants move for summary judgment on Long Point’s Count X,
which asserts a claim against them for equitable disgorgement. Under Ohio law,
“equitable disgorgement” is not a claim or a cause of action, it is a remedy. Cirino v.
Bureau of Workers’ Comp., 171 N.E.3d 840, 846 (Ohio App. Ct. 2021). Accordingly,
Long Point can pursue equitable disgorgement as a remedy for a successful claim.
However, to the extent it was pleaded as a stand-alone claim in Count X, summary
judgment is GRANTED in favor of the Perkins Defendants.
C. Perkins Defendants’ Crossclaim for Indemnification
Finally, all Defendants move for summary judgment on the Perkins
Defendants’ crossclaim for indemnification (Count VII).
Lessee Defendants argue that the Court is bound by its prior decision
declining to address indemnification because that decision was not appealed. They
argue in the alternative that the indemnification provision does not apply to
damages arising from Long Point’s declaratory judgment and quiet title claims (the
only successful claims against the Perkins Defendants). Perkins Defendants
disagree on both points.
Case: 2:20-cv-04644-SDM-KAJ Doc #: 195 Filed: 02/11/26 Page: 23 of 27 PAGEID #: <pageID>

24
As to the Lessee Defendants’ first argument, the Court did not reach the
merits of the indemnification crossclaim in its previous Order because there were no
surviving claims against the Perkins Defendants for which they could be
indemnified. The Sixth Circuit did not address the indemnification issue on appeal,
but it did revive some of Long Point’s claims against the Perkins Defendants. Thus,
there is nothing to bind the Court because there was not a decision on the merits.
Turning to the merits of the claim now, Article XII of the Defendants’ lease
includes the following indemnification provision:
Indemnity: Lessee agrees to indemnify, defend, and hold harmless
Lessor and Lessor's heirs, successors, agents, assigns, and any other
person acting under Lessor's direction and/or control against any and
all claims, damages, costs, losses, liabilities, expenses (including but
not limited to any reasonable attorneys' fees, expert fees, and court
costs) arising out of, incidental to or resulting from the Lessee's
Operations and actions, and the Operations and actions of Lessee's
servants, agents, employees, guests, licensees, invitees, independent
contractors, assigns, or any other person acting under Lessee's
direction and control. Lessee's obligations hereunder shall survive the
termination of this Lease.
(ECF No. 105-1, PAGEID# 4019.) “Operations” is defined in Article XVIII as:
Operations: "Operations" shall mean any action done by Lessee (or by
Lessee's servants, agents, employees, guests, licensees, invitees,
independent contractors, assigns, or any other person acting under the
Lessee's direction or control) related to or in connection with the
activities contemplated by this Lease.
(Id., PAGEID# 4021.)
The indemnification provision applies to damages arising from Lessee
Defendants’ actions to accomplish activities contemplated in the lease. The Perkins
Defendants do not dispute this point. Rather, they argue that “if [Lessee
Defendants] had not drilled and produced, then there would be no damage claims
Case: 2:20-cv-04644-SDM-KAJ Doc #: 195 Filed: 02/11/26 Page: 24 of 27 PAGEID #: <pageID>

25
against” them. But the Perkins Defendants have been successful on Long Point’s
“damages” claims. Long Point’s claims against them for unjust enrichment and
accounting were abandoned and the Court grants summary judgment to the
Perkins Defendants on Long Point’s disgorgement “claim” in this Opinion and
Order. The only claims for which the Perkins Defendants have had judgment
against them are title-related claims. Those title-related claims are not covered by
the indemnification clause.
Accordingly, the Perkins Defendants’ Motion for Summary Judgment is
DENIED, and the Lessee Defendants’ Motion is GRANTED on Perkins
Defendants’ Count VII.
V. CONCLUSION
For the reasons above, the Perkins Defendants and Lessee Defendants’ Joint
Motion to Dismiss (ECF No. 190) is DENIED as moot and Long Point’s Motion to
Strike (ECF No. 189) is DENIED.
As to the Motions for Summary Judgment (ECF Nos. 167, 168, 175, and 176):
• Summary judgment is GRANTED in favor of Long Point on its Counts I
and II (declaratory judgment and quiet title) to the extent they are
based on the Subdivision; on Perkins Defendants’ Counts I, II, VI
(declaratory judgment and quiet title) to the extent they are based on
the Subdivision; and on Lessee Defendants’ Counts I and II (declaratory
judgment and quiet title). Summary Judgment is DENIED to all
Defendants on these Counts to the same extent.
Case: 2:20-cv-04644-SDM-KAJ Doc #: 195 Filed: 02/11/26 Page: 25 of 27 PAGEID #: <pageID>

26
• Summary judgment is GRANTED in favor of the Lessee Defendants on
their Counts III and IV (declaratory judgment and quiet title); in favor
of the Perkins Defendants on their Counts I, II, and VI (declaratory
judgment and quiet title) to the extent they are based on the 1.15-acre
tract; and in favor of all Defendants on Long Point’s Counts I–II and V–
X to the extent they are based on the 1.15-acre tract.
• Defendants’ Motions for Summary Judgment on their affirmative
defense of laches are DENIED and Long Point’s Motion for Summary
Judgment regarding the same is GRANTED.
• Lessee Defendants’ Motion for Summary Judgment as to liability for
production before March 1, 2019 is DENIED and Long Point’s Motion
for Summary Judgment regarding the same is GRANTED.
• Lessee Defendants’ Motion for Summary Judgment on Counts V
(trespass) and Count VI (conversion) is DENIED.
• Lessee Defendants’ Motion for Summary Judgment on Long Point’s
Counts VII and VIII (waste) is GRANTED.
• Perkins Defendants’ Motion for Summary Judgment on Long Point’s
Count X (equitable disgorgement) is GRANTED.
• Perkins Defendants’ Motion for Summary Judgment on its Count VII
(indemnification) is DENIED and Lessee Defendants’ Motion for
Summary Judgment regarding the same is GRANTED.
Long Point’s following claims remain for determination:
Case: 2:20-cv-04644-SDM-KAJ Doc #: 195 Filed: 02/11/26 Page: 26 of 27 PAGEID #: <pageID>

27
Count V: Trespass
Against Lessee Defendants
Count VI: Conversion
Against Lessee Defendants
Count IX: Accounting of Rents and Profits
Against Lessee Defendants
Count X: Unjust Enrichment and Equitable Disgorgement
Against Lessee Defendants
The parties are ORDERED to meet and confer and to file a proposed case
schedule regarding damages discovery, any dispositive motions, and trial for these
claims within fourteen (14) days from the date of this Order.
IT IS SO ORDERED.
/s/ Sarah D. Morrison
SARAH D. MORRISON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
Case: 2:20-cv-04644-SDM-KAJ Doc #: 195 Filed: 02/11/26 Page: 27 of 27 PAGEID #: <pageID>