Ronald Lee Kupfer, Individually, and Beth S. Kupfer, Individually, Plaintiffs Below, Petitioners
Chesapeake Appalachia, LLC, Zachary Blair, and SWN Production Company, LLC, Defendants Below, Respondents
Marshall County 16-C-142
Ronald Lee Kupfer and Beth S. Kupfer, by counsel Teresa C.
Toriseva and Joshua D. Miller, appeal the May 11, 2017, order
of the Circuit Court of Marshall County that granted the
motion for judgment on the pleadings filed by Respondent
Zachary Blair and the motions to dismiss filed by Respondents
SWN Production Company, LLC ("SWN"), and Chesapeake
Appalachia, LLC ("CHK"). Respondent Blair, by
counsel Jonathan E. Turak and Christian E. Turak; Respondent
CHK, by counsel Nicolle R. Snyder Bagnell and Lucas Liben;
and Respondent SWN, by counsel Timothy M. Miller, Matthew S.
Casto, and W. Brian Nickerson, filed responses in support of
the circuit court's order. Petitioners submitted a reply.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
dated March 29, 1980, petitioners were conveyed ninety acres
of land that was comprised of thirty acres located in Proctor
District, Wetzel County, and sixty acres located in Mead
District, Marshall County. This deed did not include any oil
and gas reservations. It is of record in the Office of the
Clerk of the County Commission of Wetzel County in Deed Book
486, Page 456.
dated April 26, 1981, petitioners conveyed thirty acres of
the original ninety acres, located in Wetzel County, to
Kenneth R. and Cheryl E. Darr. This deed did not include any
oil and gas reservations. It is of record in the Office of
the Clerk of the County Commission of Wetzel County in Deed
Book 303, Page 63.
dated May 2, 1990 ("the subject deed"), petitioners
conveyed nine parcels of land to C. Michael Blair, including
the sixty acres located in Marshall County. The sixty-acre
parcel is referred to in this deed as the "NINTH
subject deed stated, in relevant part, as follows:
"WITNESSETH, . . . the said parties of the first part do
GRANT and CONVEY unto the said party of the second part, the
following described real estate, . . . Parcels 4, 13, 14, 15,
16, 17, 18, 19 and 20, . . . to-wit:" followed by
separately enumerated paragraphs of the first eight parcels
and their respective legal descriptions. Immediately
following these descriptions, the subject deed stated,
"There is excepted and reserved from said parcels all
the coal, oil, gas and other minerals, on, within and
underlying the property hereby conveyed, together the right
to lease, remove, mine, drill and operate for the same
without any liability for damages, also with all rights for
this reservation and exception, the subject deed listed, in a
separate paragraph, the "NINTH PARCEL, " followed
by that parcel's legal description. No reservation of the
coal, oil, gas, or minerals or any other reservation follows
the legal description of the "NINTH PARCEL."
dated September 13, 2000, C. Michael Blair conveyed his
interest in the nine parcels exactly as referenced in the
subject deed to Respondent Zachary M. Blair. The September
13, 2000, deed included the same reservation and exception as
the subject deed following the legal description of parcels
one through eight. Likewise, this deed did not include a
reservation following the legal description of the
agreement entered on April 3, 2009, a lease modification was
entered into with Respondent CHK, as sub-lessee, for the
lease of the oil and gas underlying the subject sixty
acres. In January of 2014, Respondent CHK sold
and assigned the lease, along with many other leases, to
Respondent SWN, who currently holds the oil and gas lease for
the subject property.
September 22, 2016, petitioners filed an amended complaint
against respondents claiming that petitioners were the
rightful owners of the oil and gas underlying the subject
sixty acres. Petitioners alleged claims of conversion and
trespass. Respondent Blair thereafter filed a motion for
judgment on the pleadings under West Virginia Rule of Civil
Procedure 12(c) and Respondents CHK and SWN filed motions to
dismiss under Rule 12(b)(6). Following a hearing, the circuit
court entered an order granting respondents' respective
motions. In its May 11, 2017, order, the court concluded that
the May 2, 1990, deed unambiguously reserved the oil and gas
under parcels one through eight to the grantors (i.e.,
petitioners) but did not reserve any oil and gas under the
ninth parcel and that, because petitioners do not own the oil
and gas, they do not have standing to bring any of their
claims. This appeal followed.
appeal requires our review of two rulings that are the
subject of the circuit court's May 11, 2017, order. The
first ruling grants Respondent Blair's motion for
judgment on the pleadings. "'Appellate review of a
circuit court's order granting a motion for judgment on
the pleadings is de novo.' Syl. Pt. 1, Copley v.
Mingo County Bd. of Educ., 195 W.Va. 480, 466 S.E.2d 139
(1995)." Syl. Pt. 1, Choice Lands, LLC v.
Tassen, 224 W.Va. 285, 685 S.E.2d 679 (2008).
Furthermore, "[a] circuit court, viewing all the facts
in a light most favorable to the nonmoving party, may grant a
motion for judgment on the pleadings only if it appears
beyond doubt that the nonmoving party can prove no set of
facts in support of his or her claim or defense."
Id. at 285, 685 S.E.2d at 679, at syl. pt. 2
(quoting Copley, 195 W.Va. at 480, 466 S.E.2d at
139). "'A motion for judgment on the pleadings
presents a challenge to the legal effect of given facts
rather than on proof of the facts themselves.'"
Tassen, 224 W.V. at 285, 685 S.E.2d at 679 (quoting
Copley, 195 W.Va. at 480, 466 S.E.2d at 139, at syl.
pt. 2, in part).
"[a]ppellate review of a circuit court's order
granting a motion to dismiss a complaint is de
novo." Syl. Pt. 2, State ex rel. McGraw v.
Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461
S.E.2d 516 (1995). Finally, "[d]ismissal for failure to
state a claim is proper 'where it is clear that no relief
could be granted under any set of facts that could be proved
consistent with the allegations.'" Murphy v.
Smallridge, 196 W.Va. 35, 36, 468 S.E.2d 167, 168
issue in this appeal is whether the circuit court erred in
concluding that the subject deed "unambiguously reserved
the oil and gas under parcels One through Eight, but [did]
not reserve any oil and gas under the Ninth Parcel."
Petitioners argue that "[a] deed of conveyance, in order
to pass title, must contain a description of the property
being conveyed which sufficiently identifies the land, either
by the language of the granting clause itself or by reference
to extrinsic facts which render the description
certain." Sally-Mike Props. v. Yokum, 175 W.Va.
296, 301-02, 332 S.E.2d 597, 602 (1985). According to
petitioners, the subject deed "stated[, ] in the
paragraph immediately following the identification of the
parties, what was being conveyed: ' . . . the following
described real estate, whose Tax Map Number is 21, Parcels 4,
13, 14, 15, 16, 17, 18, 19, and 20. . . .'"
Petitioners contend that this language "completed the
conveyance" and that the descriptions of the individual
parcels that appear later in the subject deed were
unnecessary to meet the requirement that the land being