COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66622, 66645, 67369 ROSE M. CHANCE, ET AL. : : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION BP CHEMICALS, INC. : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 30, 1995 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. CV-214618 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: For Defendant-Appellee: JAMES T. MURRAY, ESQ. FREDERICK R. NANCE, ESQ. 300 Central Avenue SQUIRE, SANDERS & DEMPSEY P.O. Box 19 4900 Society Center Sandusky, Ohio 44671-0019 172 Public Square Cleveland, Ohio 44114-1304 JOEL LEVIN, ESQ. THOMAS MESTER, ESQ. DAVID L. BELL, ESQ. NURENBERG, PLEVIN, 200 Public Square HELLER & MCCARTHY Cleveland, Ohio 44114 1370 Ontario Street, 1st Floor Cleveland, Ohio 44113-1792 DAMOND R. MACE, ESQ. SQUIRE, SANDERS & DEMPSEY MARK R.WILLIAMS, ESQ. 4900 Society Center WILLIAMS & WILLIAMS 127 Public Square 5581 Liberty Avenue Cleveland, Ohio 44114-1304 P.O. Box 460 Vermillion, Ohio 44089 - 2 - DYKE, J.: This consolidated appeal arises from a class action lawsuit filed, inter alia, for trespass. In C.A. No. 66622, plaintiffs- appellants, Rose M. Chance et al., appeal a jury verdict granted in favor of defendant-appellee, BP Chemicals Incorporated ("BP Chemicals") and BP Chemicals cross-appeals a denial of its motion for summary judgment. In C.A. No. 66645, passive class member, Mary Virgina Rauch, appeals the denial of her Motion to Intervene and in C.A. No. 67369, defendant-appellant BP Chemicals appeals a denial of its Motion for Sanctions. Upon review, we affirm the jury's unanimous verdict; find that the trial court erred in denying BP Chemicals' motion for summary judgment and affirm the denial of both motions. On July 17, 1991, named plaintiffs-appellants, Rose M. Chance, Eliza Avery and Bessie Shadwick, filed the instant action on behalf of citizens of the city of Lima owning an interest in real property located within a five-mile radius of BP Chemicals' 200 acre chemical refining facility. Appellants seeking a permanent injunction and one billion dollars in general and punitive damages, sued for trespass, nuisance, negligence, strict liability, fraudulent concealment and injunctive relief based upon their claim that hazardous liquid waste ("injectate") from BP Chemicals' - 3 - deepwell disposal process (occurring 1/2 mile below the earth's 1 surface) had migrated beneath their properties. On June 17, 1992, appellants moved for class certification. On October 21, 1992, the trial court heard BP Chemicals' motion for summary judgment and on December 2, 1992, dismissed claims for emotional distress and punitive damages. On March 23, 1993, the court bifurcated the trial into liability and damage quantification phases setting trial of the former for November 3, 1993. On or about October 6, 1993, appellants mailed notices to over 10,000 property owners. 2,000 notices, representing nearly 4,000 proper- ties, "opted out" of the action by returning exclusion request forms to the court by the post-mark deadline of October 27, 1993. Appellant, Rauch did not return a form but filed a motion to intervene on October 26, 1993 which was denied. Trial commenced on November 3, 1993. At the close of appellants' case in chief, the court granted BP Chemicals' motion for directed verdicts on fraud, nuisance and ultra-hazardous activity claims. On November 18, 1993, the jury returned a favorable verdict on the remaining issue 2 of trespass and answered ten interrogatories related thereto. On 1 In 1967, the Ohio General Assembly passed enabling legislation setting up a comprehensive scheme for permitting, supervising and regulating deepwell operation in the State of Ohio. (Am. S.B. 226 (1967)) BP Chemicals is fully permitted by the State to operate three deepwells on its 200 acre parcel. These wells open into the Mt. Simon and Eau Claire geologic formations. 2 Specifically, the jury found that in terms of vertical (or upward) migration, the injectate was more than 2,600 feet below the surface of the earth (Int. No. 1); that the extent of - 4 - December 10, 1993, BP Chemicals filed a motion for sanctions which was denied on April 27, 1994. The instant appeal followed. I THE COURT ERRED IN DENYING A DIRECTED VERDICT ON THE ISSUE OF TRESPASS. THE COURT ERRED FURTHER BY FASHIONING A JURY INSTRUCTION ON TRESPASS WHICH REQUIRED THE JURY TO FIND DAMAGE TO THE PROPERTY AS A PREREQUISITE FOR A FINDING OF TRESPASS. In their first assignment of error, appellants argue that the ad coelum maximum to wit, that surface holders own from the center of the earth to the heavens and an alleged admission made by BP migration was best described by Dr. John Pickens' modeling as shown on Defense exhibit 131; (Jury Question 2); that plaintiffs did not prove by a preponderance that BP Chemicals had unreasonably interfered with the use of their property (Int. No. 3); that BP Chemicals' deepwells have not caused some actual and substantial damage to their private property, separate and apart from any claim of stigma or decrease in property values (Int. No.4); that plaintiffs did not prove by a preponderance that BP Chemicals committed a trespass on the named plaintiffs' property (Int. No. 5); that named plaintiffs did not prove by a preponderance that the fair market value of their property had been decreased as a direct result of the operation of BP Chemical's deepwells (Int. No. 6); that assuming portions of the injectate had migrated into the native brine flowing through the Eau Claire & Mt. Simon formations located more than one-half mile below the surface of properties adjacent to BP's plant in Lima, that such does not constitute a trespass as to the surface property owners (Int. No. 7); that plaintiffs have not proven by a preponderance that BP Chemicals is liable to any member of the class (Int. No. 8) and assuming portions of the injectate have migrated into the native brine more than one-half mile below the surfaces of properties adjacent to BP Chemicals' plant in Lima, plaintiffs have not proven by a preponderance that the owners of those properties have suffered actual damages directly and proximately caused by the deepwells. (Int. No. 9) - 5 - Chemicals, mandated a directed verdict in their favor on the issue 3 of trespass. Appellants' argument is unpersuasive. The ad coelum maximum is neither recognized nor controlling precedent in the state of Ohio. See, Village of Willoughby Hills v. Corrigan (1972) 29 Ohio St.2d 39 where, in a navigable air rights dispute, the Supreme Court of Ohio eschewed the maxim as having "no place in the modern world" and held that "[t]he owner of 3 Appellants' cite to hand drawings on a document repeatedly described by BP Chemicals' expert, Dr. John Pickens, to be an "approximation" of a refined computer generated document submitted to the federal EPA and used at trial. Contrary to appellants' admission claim, Dr. Pickens testified that based upon the most conservative migration rate, to wit, 6 inches per year (the more likely rate being approximately 2 inches per year) the plume boundary of organic waste was more than 1/4 mile away from appellant Chance's home. He further testified that molecules of inorganic waste would never pass beneath her property as they were migrating in a westerly direction. Appellants' counsel then asked, "It would be under some other people's houses?" Dr. Pickens replied, "I do not know that." (Tr. 1537-38) Counsel's remarks are not evidence and BP Chemicals' reply hardly constitutes an admission. Moreover, counsel did not pursue the other distances demonstrated by BP Chemicals' modeling which indicated that the injectate was 1/2 mile away from appellant Avery's property, 1 mile away from appellant Shadwick's property and 1/2 mile away vertically from all the properties under numerous layers of non-porous rock at extremely low relative concentration levels. In the case of one toxin, to wit, acrylamide, the concentration would be less than .000000000001 or 1,000 times lower than the detection limit for that chemical and 60 times lower than the Safe Drinking Water Standard for treated water. (Pickens' Affidavit, Pgs. 6, 9, Pgs. 25, 26 BP Chemicals' Motion for Summary Judgment) Additionally, in connection with a "no migration petition" which was approved by the United States EPA on May 7, 1992, (57 Fed. Reg. 105, 23094 (1992)) BP Chemicals' drilled a "stratigraphic test well" to fully document the site specific geology at the Lima facility. Based upon extensive site-specific testing submitted in support of the petition, the EPA explicitly found that the injectate would remain trapped in the brine for more than 10,000 years and would have no effect on drinking water or land surfaces above the brine. (See, BP Chemicals' Motion for Summary Judgment, Pg. 5.) - 6 - land owns as much of the space above him as he uses, but only so long as he uses it. All that lies beyond belongs to the world." Id. at 49, 50. This principle is equally applicable to subsurface rights in ground water and is not inconsistent with a longstanding and substantial body of law which has developed in the south and southwest where oil and gas exploration and deepwell injection are routinely practiced. These bodies of law define the doctrine of capture as well as the negative rule of capture which are based upon the unique fugacious or migratory nature of oil, gas, water and certain minerals. In Railroad Comm'n of Tex. v. Manziel (1962), 361 S.W.2d 560, the Supreme Court of Texas stated the negative rule of capture: Just as under the rule of capture a land owner may capture such oil or gas as will migrate from adjoining premises to a well bottomed on his own land, so also may he inject into a formation substances which may migrate through the structure to the land of others, even if it thus results in the displacement under such land of more valuable with less valuable substances... . In West Edmonds Salt Water Disposal Ass'n et al., v. Rosencrans et al. (1950), 226 P.2d 965, the Supreme Court of Oklahoma held that: [W]here salt water injected into abandoned well commingled with salt water information or stratum which likewise contained salt water and percolated into part of formation underlying plaintiff's adjoining lands, without injury or damage to such adjoining lands and without depriving plaintiffs of possession, use and enjoyment or any part thereof there was no taking or damaging of plaintiffs' realty which would subject the defendants to liability. - 7 - We find the native brine located in the Mt. Simon and Eau Claire formations to posses the same, above-described nature even though it exists as contained water. We further find such brine to 4 constitute a water of the state as defined by R.C. 6111.01(H). Hence, it is exclusively regulated by the state and appellants have no rights in this natural resource absent the issuance of mandated 5 permits. See, R.C. 1509.081. Moreover, even if injectate diffused 4 "Waters of the state" means all streams, lakes, ponds, marshes, watercourses, waterways, wells, springs, irrigation systems, drainage systems, and all other bodies or accumulations of water, surface and underground, natural or artificial, regardless of the depth of the strata in which underground water is located which are situated wholly or partly within, or border upon, this state or are within its jurisdiction.... (Emphasis omitted) 5 Further evidence of the State's exclusive authority to regulate native brine is the following consent entry which states in relevant part that: ... plaintiffs, their heirs, administrators, successors and assigns have no property rights which limit or impede defendant's ability and right to conduct their deep well injection operation in such a manner that results in subsurface, off-site migration of injected waste material from permitted deep wells into geological formations below the Big Lime Aquifer beneath plaintiffs' property; that in any event there are no property rights of plaintiffs, their heirs, administrators, successors and assigns, that are affected or impaired by such migration in any forum; and that in any event all claims of said plaintiffs, . . . to such future subsurface, off-site migration into geological formations below the Big Lime Aquifer, are hereby barred. Warner v. Waste Management (January 26, 1990) Sandusky Common Pleas No. 83-CV-781, Opinion and Order, paragraph 8, Pg. 7. - 8 - within the brine, were to migrate beneath appellants' properties, such trespass, without evidence of actual and substantial damage would be unactionable. In Brown v. Scioto Cty. Bd. Commrs. (1993), 87 Ohio App.3d 704, 717, the Scioto County Court of Appeals citing Borland v. Sanders Lead Co., Inc., (Ala. 1979), 369 So.2d 523 held that: For an indirect invasion to amount to an actionable trespass, there must be an inter- ference with plaintiff's exclusive possessory interest; that is, through the defendant's intentional conduct, and with reasonable foreseeability, some substance has entered upon the land itself, affecting its nature and character and causing substantial damage to the res. Named appellants admitted at trial that BP Chemicals' deep- wells had not caused any actual damage to their property or injury 6 to their person. In construing the evidence most strongly in favor of appellants, reasonable minds can reach only one conclusion which is that they failed to prove an actionable trespass. See, Civ.R. 50(A)(4) and Brown, supra. The trial court did not err in denying appellants' motion for a directed verdict nor did it err in refusing to instruct the jury that damages could be presumed. 6 Three named appellants and four passive class members testified that they were concerned or angry when they heard, mostly through word of mouth with some media coverage, essentially unsubstantiated information on the issue of injectate migration. - 9 - Appellants' first assignment of error is overruled. II AFTER ERRONEOUSLY FASHIONING A DEFINITION OF "TRESPASS" WHICH REQUIRED PLAINTIFFS TO PROVE DAMAGE TO THE PROPERTY, THE COURT FURTHER ERRED BY DENYING PLAINTIFFS THE EVIDENCE NEEDED TO SHOW DAMAGE AND DEVALUATION AND BY PERMITTING INADMISSIBLE EVIDENCE PROFFERED BY DEFENDANT, AND BY OTHER EVIDENTIARY ERRORS. In their second assignment of error, appellants' argue that the trial court erred in excluding the testimony of Wayne Weber on the subject of environmental stigma and also erred in excluding evidence on CERCLA liability, evidence regarding the mandates of Ohio's real estate disclosure law, evidence with respect to migra- tion at other deepwell sites and evidence of unjust enrichment. Lastly, they argue that the court erred in admitting the alleged hearsay testimony of BP Chemicals' real estate expert regarding an alternative reason for the decline in value of a particular resi- dential property. Appellants' arguments are devoid of merit. The record demonstrates that Weber was unqualified as an 7 expert and that substantial testimony regarding the market impact of environmental stigma had already been presented by appellants' expert, Gil Snyder. The court's exclusion of such incompetent and cumulative evidence was neither arbitrary nor prejudicial. In addition, we find the court's in limine rulings were proper. 7 Weber had no certification or training in the field of real estate appraisal, had never visited Lima nor talked to Lima residents. - 10 - 8 CERCLA and Ohio's realty disclosure laws apply to properties 9 already proven to be contaminated. Bifurcation of the instant action precluded evidence regarding these laws. Bifurcation also precluded evidence of unjust enrichment as such is arguably, a measure of damages. The ruling regarding other deepwell sites was entirely proper as there was absolutely no evidence of damage or nuisance at the Lima site. Lastly, the record demonstrates that BP Chemical's expert testified from personal experience. Appellants' second assignment of error is overruled. III THE COURT MADE PROCEDURAL ERRORS WHICH RESULTED IN PRE- JUDICE TO PLAINTIFFS. THE COURT'S ENTRY OF A CLASS CERTIFICATION ORDER, COMBINED WITH THE WAY IN WHICH THE CLASS NOTICE WAS ISSUED, RESULTED IN ERROR PREJUDICIAL TO PLAINTIFFS. In their third assignment of error, appellants' claim that the trial court erred in failing to hold a hearing on their motion for certification and also erred in failing to affirmatively state in its order, findings with respect to numerosity, commonality, typi- cality and adequacy as mandated by Civ.R. 23(A) and Warner v. Waste Management (1988) 36 Ohio St.3d 91. 8 The record also demonstrates the unrebutted affidavit of BP Chemicals' legal expert who testified to the inapplicability of CERCLA on the basis that it would be absurd and patently unfair for the federal government to permit deepwell injection and then mandate clean up of the brine which is already toxic and useless in its natural state. 9 Horizontal migration of the injectate more than 1/2 mile below the earth's surface cannot constitute contamination as its presence at that level is fully permitted. - 11 - We overrule appellants' first argument on the ground of waiver as the record demonstrates appellants never requested a hearing and never objected to its omission. See, Aristech Chemical Corp. v. Carboline Co. (1993), 86 Ohio App.3d 251. We overrule appellants' second argument on the ground of invited error. See, Lester v. Leuck (1993) 142 Ohio St. 91 which holds that a party will not be permitted to take advantage of an error which he himself invited or induced the court to make. The record demonstrates that appellants submitted a 24 page memorandum and twelve exhibit appendix in support of their motion for certification 1 year after filing the action and 1 1/4 years prior to commencement of trial. In light of the numerous pre- trials and case management conferences held by the court in this case, appellants had ample opportunity to correct any defects in the court's class certification order but failed to do so. Dis- positive however, is the fact that the court's class certification and notice orders reflect characteristics and geographic boundaries set forth in appellants' memorandum and in their expert hydro- logist's report. (See, Affidavit of Moid Ahmad, Ph.D., submitted in support of "Plaintiffs' Response to Defendants Motion for Summary Judgment") Hence, appellants' cannot assert as error a 10 class description which they themselves introduced and advanced. Even if the court had made affirmative findings in this case, it is 10 We further note that appellants' counsel's firm was the firm of record in Warner, supra. Consequently, counsel possessed particular expertise in class certification matters. - 12 - highly unlikely that the outcome of their trial would have been different. In light of Brown, supra, appellants' arguments are moot. Their third assignment of error is overruled. IV THE COURT SHOULD HAVE PERMITTED INTERVENTION. Appellants direct us to the brief of Mary Virgina Rauch in C.A. No. 66645. Her assignments of error are stated as follows: I THE COURT ERRED BY NOT GIVING SUFFICIENT TIME FOR PROSPECTIVE INTERVENORS, INCLUDING MRS. RAUCH, TO RESPOND. II THE COURT SHOULD HAVE GRANTED MRS. RAUCH'S MOTION TO INTERVENE. III THE COURT SHOULD HAVE GRANTED MRS. RAUCH'S MOTION FOR A DELAY OF THE TRIAL. Ms. Rauch's assignments of error are not well taken. In Williams v. Vukovich (6th Cir. 1983), 720 F.2d 909 it was held that two weeks notice was the minimum amount of time which would provide passive class members a "full and fair opportunity" to consider and develop a response to a proposed consent decree. Id., 921. Rauch had twenty days notice. Accordingly, she had ample time to develop her response to the instant action. Additionally, a review of her motion demonstrates that she never requested intervention and stated no applicable grounds for same. Rauch did not claim that she was being inadequately - 13 - represented by named appellants nor did she claim that she had an 11 independent claim or defense to advance. (See, Civ.R.24(A)) Moreover, as a passive class member Rauch, had no standing to continue trial. See, Fairview General Hospital v. Fletcher (1990), 69 Ohio App.3d 827. Lastly, Rauch filed her motion on October 26, 1993, essentially on the eve of a trial which had been scheduled eight months earlier in anticipation of the testimony of several out of state expert witnesses. Hence, the trial court did not err or abuse its discretion in denying Rauch's untimely and unsupported motion. Her assigments of error are overruled. V THE COURT ERRED IN NOT GIVING PLAINTIFFS' INSTRUCTIONS REGARDING THE BURDEN OF PROOF. 12 Appellants, relying upon outdated and inapplicable case law argue that since BP Chemicals claimed to have unique access and knowledge regarding the location of its injectate, the burden 11 The motion demonstrates that Ms. Rauch merely assumed intervenor status and stated no appropriate grounds for same as evidenced by the following excerpt: Now comes Mary Virgina Rauch .... pursuant to notice received, intervenes in the within action. As an intervening party, the undersigned respect- fully joins class counsel's request for a 30 day extension for commencement of the trial. Intervening party seeks such extension in order to have an oppor- tunity to evaluate whether she wants to remain as an intervening party, exclusde [sic] herself from the action or remain as a passive class member. (Emphasis added.) 12 Jenny v. Gray (1855), 5 Ohio St. 46 and Burke v. Cincinnati (1929) 27 Nisi Prius New Series 589. - 14 - shifts to them to disprove trespass. Appellants' argument is devoid of merit. Not only does it confuse the burden of coming forward for purposes of discovery (which BP Chemicals was not obliged to do as extensive data supporting its no migration petition was public record) but it negates the trial process wherein the "burden of proof lies with the plaintiff to establish the elements of the claim which would substantiate recovery." Oblander v. Oblander (July 7, 1988) Cuyahoga App. No. 52480, unreported at 3. Appellants' fifth assignment of error is overruled. VI THE COURT ERRED IN EXCLUDING CERTAIN TOPICS FROM THE CONSIDERATION OF THE JURY. In their sixth assignment of error, appellants' claim that the trial court was confused and erred when it summarily dismissed "... any and all claims of negligent and/or intentional infliction of emotional distress." ("IIED") (See, Journal entry granting partial summary judgment, December 2, 1992, Vol 1569, Pg. 159) Appellants' claim that they never pled IIED as an independent action and that the court's order prejudicially prevented them from presenting evidence of emotional distress as an element of damages. Appellants' argument is devoid of merit. Bifurcation, not summary judgment precluded appellants from presenting evidence of emotional distress as an element of damages. While appellants' complaint does not demonstrate an independent - 15 - cause of action for IIED, we find the court's order was not unwarranted where appellants alleged that BP Chemicals: "...[W]illfully and/or wantonly and/or inten- tionally permitted these toxic, hazardous and carcino- genic chemical wastes to release, discharge and migrate off property... and that such trespass "... has caused and instilled and will continue to cause and instill reasonable fear...." (Appellants' Complaint, Paragraph 30) Moreover, if there was any confusion on the part of the trial court, it can be attributed to appellants' counsel who cited Yeager v. Local Union 20 (1983) 6 Ohio St.3d 369 immediately after his assertion that appellants could "collect damages for emotional distress." (See, Appellants' Response to BP's Motion for Summary Judgment, Paragraph V. Pg.20) Yeager is generally cited for the purpose of setting forth a cause of action for IIED not for arguing for damages. Moreover, as appellants stated in their Response, supra, "Ohio law does not require that the emotional distress be 'severe' or 'debilitating' where it is accompanied by other injuries. Binns v. Fredendall (1987), 32 Ohio St.3d 244." Id. at 20. During summary proceedings appellants presented no evidence of injury to person or damage to surface property and no affirmative evidence that BP Chemicals' operation of its deepwells constituted extreme or outrageous conduct which proximately caused "severe" or "debilitating" distress. See, Yeager, supra. Hence, the trial court's award of summary judgment on the issue of IIED whether explicitly or implicitly pled was proper and not prejudicial. - 16 - The court's dismissal of appellants' punitive damages claim was also proper as appellants presented no affirmative evidence of actual malice or conscious wrongdoing to create a triable issue of fact. See, Civ.R. 56(E) and Preston v. Murty (1987), 32 Ohio St.3d 334. Appellants' argument that the court erred in directing verdicts on their nuisance, fraud and ultrahazardous activity claims is also meritless as the record demonstrates a failure to present sufficient evidence to support such claims. Appellants' sixth assignment of error is overruled. VII TAKEN AS A WHOLE, THE COMBINATION OF THE COURT'S RULING WAS SUCH AS TO CREATE A PROCEEDING SO BIASED AGAINST PLAINTIFFS AS TO MERIT A NEW TRIAL. WHILE EACH PRO- CEDURAL RULING DISCUSSED HEREIN IS SEPARATELY ASSIGNED AS ERROR, THE PRIMARY FOCUS OF ASSIGNMENT OF ERROR VII IS TO ASSERT THAT EVEN IF ONE OR MORE OF THE TRIAL COURT'S PROCEDURAL RULINGS WERE TO BE DISMISSED AS NON- PREJUDICIAL THE COMBINATION OF SUCH RULINGS WOULD CON- STITUTE REVERSIBLE ERROR, AND THIS IS PARTICULARLY TRUE IN A CLASS ACTION PROCEEDING WHERE THE TRIAL COURT HAS A SPECIAL OBLIGATION TO TAKE INTO ACCOUNT THE RIGHTS OF PASSIVE CLASS MEMBERS. Appellants' seventh assignment of error is devoid of merit. Appellants never moved for a new trial and the argument that cumulative harmless error constitutes reversible error has been expressly rejected by this court. See, McQueen v. Goldey (1984) 20 Ohio App.3d 41. We now address BP Chemicals' four cross-assigments of error. I SUMMARY JUDGMENT SHOULD HAVE BEEN ENTERED IN BP CHEMICALS' FAVOR ON ALL OF PLAINTIFFS' CLAIMS. - 17 - BP Chemicals' first cross-assignment of error is well taken. Summary judgment is appropriate whenever a party has shown: (1) [T]hat there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66. Once summary proceedings have been properly initiated, the responding party must set forth specific facts demonstrating triable issues on all essential matters for which he bears the initial burden of proof. Mere reliance on the pleadings is insufficient. See, Civ.R. 56(E); Celotex Corp. V. Catrett (1986), 477 U.S. 317, 322-323 and Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 112. In addition to dismissing appellants' emotional distress and punitive damage claims, the trial court should have dismissed appellants' trespass, nuisance, negligence, ultrahazardous activity and fraudulent concealment claims. Trespass As discussed supra, the invasion which formed the basis of this action was BP Chemicals' deepwell injection into waters exclusively regulated by the state of Ohio. Since appellant class has no possessory interest in these waters, it follows that they have no possessory interest in the formation layers which hold these waters. Accordingly, appellants' expert affidavit asserting - 18 - trespass at 2,610 feet below the surface and claims of subsurface damage to the Eau Claire and Mt. Simon formations beneath their properties were not actionable claims. Appellants' presented no evidence that their underground water supply was contaminated or that their surface property was adversely affected in any per- ceivable way. Our legal system does not and cannot recognize actions for 13 unsustained, conceptual or future damage. To do so, particularly in this context, would be to declare "open season" not only on BP Chemicals, but on any entity whose enterprise involves the disposal of hazardous, byproduct waste and the fear that such disposal engenders. Actions, driven purely by fear, could threaten entire industries, forcing them to mount costly defenses or submit to costly settlements potentially transforming our legal process into a vehicle for extortion. We find the instant claim for trespass which alleges purely theoretical and conceptual harm to be non-actionable pursuant to Brown, supra, and overriding public policy. Summary judgment should 14 have been granted on this claim as a matter of law. 13 A fifty state Lexis search failed to demonstrate a single cause of action based upon conceptual as opposed to actual and substantial damage associated with permitted, non-negligent deepwell disposal. 14 While Brown, supra, was unpublished at the time of summary proceedings, we nevertheless find that an action without injury in fact cannot be maintained. See, Weiss v. Mecklenburg (May 7, 1992), Cuyahoga App. No. 60083, unreported, at 12, which states that: - 19 - Nuisance/Negligence [A] civil action based upon the main- tenance of a qualified nuisance is essentially an action in tort for the negligent mainten- ance of a condition, which, of itself, creates an unreasonable risk of harm, ultimately resulting in injury. * * * The allegation of nuisance and negligence therefore merge, as the nuisance claims rely upon a finding of negligence. Allen Freight Lines, Inc. v. Consol. Rail Corp. (1992), 64 Ohio St.3d 274. Appellants' claim for nuisance and/or negligence should have been summarily dismissed as appellants presented no affirmative evidence in their response that BP Chemicals' operated their wells negligently and that such negligent operation ultimately resulted in injury in fact or substantially interfered with the enjoyment of property. Ultrahazardous Activity A cause of action for the tort of ultra-hazardous activity is analytically identical to that of absolute nuisance. An absolute nuisance, or nuisance per se, consists of an act resulting in harm for which, because of the hazards involved, absolute liability attaches notwithstanding the absence of fault. Taylor v. Cincinnati (1944) 143 Ohio St. 426 [A] basic tenet of civil law is "Injuria absque damno." As translated in Black's Legal Dictionary, Fifth Edition, that says, "A wrong done, but from which no loss or damage results, and which therefore, will not sustain a causes of action. - 20 - Appellants' presented no affirmative evidence in their responsive brief that BP Chemicals' permitted deepwell disposal process resulted in actual harm to person or property. Fraud A claim for fraud requires proof of the following elements: a) a representation, or where there is a duty to disclose, concealment of fact; b) which is material to the trans- action at hand; c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred; d) with the intent of misleading another into relying upon it; e) justifiable reliance upon the representation or concealment; and f) a resulting injury proximately caused by the reliance. Russ v. TRW (1991), 59 Ohio St.3d 42, 49. Appellants' response advanced no affirmative facts whatsoever with respect to actual representations or concealment made by BP Chemicals to the appellant class. BP Chemicals' first cross- assignment of error is sustained. II THE COURT ERRED IN REFUSING TO GIVE THE JURY INSTRUCTIONS REQUESTED BY BP CHEMICALS AND IN GIVING THE JURY INSTRUC- TIONS REQUESTED BY PLAINTIFFS. We find cross-appellants' assignment of error to be well taken in part. Ordinarily, requested instructions should be given if they are correct statements of the law applicable to the facts in the case and reasonable minds might reach the conclusion sought by the instruction. (Citations omitted.) Murphy v. Carrollton Mfg. Co. (1991) 61 Ohio St.3d 565, 591. - 21 - The pleadings and evidence adduced in this action at summary judgment, directed verdict and verdict stages of the proceedings clearly invoked principles of oil and gas law. Hence, BP Chemicals' instructions with respect to capture and the negative rule of capture should have been given to the jury. We cannot say that the trial court erred in withholding BP Chemicals' instruction regarding ownership of subsurface rock being coextensive with a reasonable expectation of use, as the latter is not the factor which deprived appellant class of a possessory interest in the formations beneath their property. The factor which bars this possessory interest is the superior right of the State of Ohio to exclusively regulate its waters. Such instruction in principal, however, is not inconsistent with the principles set forth in Village of Willoughby Hills. Lastly, the ad coelum instruction given by the court was error as such is an incorrect statement of 15 the law. Id. BP Chemicals' second cross-assignment of error is sustained in part. III THE COURT ERRED IN NOT LIMITING PLAINTIFFS' EVIDENCE TO THE CLASS REPRESENTATIVES' CLAIMS. Cross-appellants' third assignment of error is well taken. It is well settled that the named plaintiffs in a class action are so named because "the claims or defenses of the representative 15 At appellants' request, the trial court instructed the jury that "[t]he ownership of real estate extends from the center of the earth to the heavens." (Tr. Pg 2002) - 22 - parties are typical of the claims or defenses of the class." See, Civ. R. 23(A)(3). The typicality requirement can be found to be satisfied where there is no express conflict between the represen- tatives and the class. See, Shaver v. Standard Oil Co. (1993) 89 Ohio App.3d 52. In the instant action, three residential property owners were named as representatives of the class. At trial, an industrial property owner, to wit, a steel manufacturer was permitted to testify with respect to plans to drill for oil and gas. Clearly, there is an express conflict between the interests of named appellants, respectively owning .16, .29 and .16 acres of resi- dential property and a passive class member who utilizes his property in a commercial manner, who may wish to sue upon a 16 different legal theory and who, because of greater financial resources, may wish to maintain the action rather than settle. BP Chemicals' third cross-assignment of error is sustained. IV THE COURT ERRED IN ALLOWING PLAINTIFFS' COUNSEL TO ASK THE JURY TO PREDETERMINE A RESULT THEY WANTED, AND THEN MAKE THEIR ANSWERS TO INTERROGATORIES CONSISTENT WITH A PREDETERMINED RESULT. In their fourth cross-assignment of error, BP Chemicals, argues that comments made by appellants' counsel during closing 16 See, Cleveland Board of Edn. v. Armstrong World Indus. Inc., 22 O. Misc. 2d 18 stating that a plaintiffs' claim is typical if it arises from the same event, practice or course of conduct that gives rise to the claims of other class members and is based on the same legal theory. - 23 - argument amounted to an instruction that the jury ignore applicable law; that they pre-determine a desired result and that they answer the special interrogatories consistent with that desired result. At trial BP Chemicals objected to the following advisory: [B]ear in mind ladies and gentlemen, that if you come to the conclusion that these people are entitled to relief, those interrogatories have to be answered correctly or the court has the right to simply take your verdict away. So be very, very careful that there isn't any conflict between your general verdict, what you generally want to accomplish and what your answer is on those special verdicts; otherwise, what you wanted to achieve can be simply taken away by the court. Be very careful on those. Upon review we find BP Chemicals' argument to be unfounded. Its fourth cross-assignment of error is overruled. Finally, we address two assigments of error related to the denial of BP Chemicals' motion for sanctions. I THE TRIAL COURT ERRED IN APPLYING A SUBJECTIVE RATHER THAN OBJECTIVE STANDARD ON THE FRIVOLOUS CONDUCT COUNT OF THE SANCTIONS MOTION, AND ERRONEOUSLY DENIED SANCTIONS WHERE PLAINTIFFS' COUNSEL FILED CLAIMS WITH NO BASIS IN LAW OR FACT AND FILED AN AFFIDAVIT MANUFACTURING SHAM FACT ISSUES TO OPPOSE SUMMARY JUDGMENT. Ohio's frivolous conduct statute is codified in R.C. 2323.51 which states in pertinent part that: (A) As used in this section: (1) "Conduct" means filing a civil action, asserting a claim, ... . (2) "Frivolous Conduct" means conduct of a party to a civil action or of his counsel of record that satisfies either of the following: * * * - 24 - (b) It is not warranted under existing law and cannot be supported by a good faith argument for an extension, modification, or reversal of existing law. With respect to request for sanctions for frivolous conduct, whether pleading is warranted under existing law or can be supported by a good faith argument for an extension, modification or reversal of existing law is a question of law, peculiarly within the competence of an appellate court. Passmore v. Greene Cty. Bd. Elections (1991), 74 Ohio App.3d 707, 600 N.E.2d 309. Therefore, we are not bound by a trial court's determinations. Tomb & Associates Inc. v. Wagner (1992), 82 Ohio App.3d 363. In its first assignment of error BP Chemicals argues that appellants' counsel filed baseless and unwarranted claims for punitive damages, emotional distress, fraud, nuisance and ultra- hazardous activity; that counsel created sham issues of fact in preparing his expert's affidavit to avoid summary judgment and that the trial court used an erroneous, subjective standard in denying the instant motion for sanctions. We agree that counsel brought 17 baseless and unwarranted claims. We agree in part that 17 Counsel presented no evidence of "actual malice" or "conscious wrongdoing" to support a $500 million punitive damages claim and refused to voluntarily dismiss such claim. See, Preston, supra. Counsel presented no evidence of outrageous conduct or severe or debilitating distress to support a claim for IIED and presented no evidence of actual or substantial damage to support an emotional distress damage claim. See, Yaeger and DeSario v. Industrial Excess Landfill (1991), 68 Ohio App.3d 117 where landowner class sued after state authorities officially closed a wholly contaminated landfill (not deepwell) site. Counsel presented no evidence that BP Chemicals falsely represented, concealed or intentionally misled appellants with justifiable reliance and proximate injury to support a fraud claim and presented no evidence of actual injury to person or property to support a claim for nuisance or ultrahazardous - 25 - appellants' counsel created certain sham issues of fact in 18 preparing his expert's affidavit and further agree that the trial court utilized an erroneous standard in denying BP Chemicals' 19 motion for sanctions. However, we do not find that the court activity. See, Russ, Allen and Taylor, supra. 18 After reviewing Dr. Ahmad's entire 800 page deposition, we find that counsel did not create a sham issue of fact with respect to their trespass claim as Dr. Ahmad's injectate modeling results were the same at deposition and in the affidavit. We must note however, that Dr. Ahmad's modeling results, which indicated a 4 mile migration compared to BP Chemicals' modeling results which indicated a .88 to 1.08 mile from centeroid migration, were substantially if not wholly discredited at trial due to his disregard of and failure to input available, site- specific data; the trial and error technique of his methodology; the inputting of indefensibly high horizontal permeability values and inaccurately low vertical permeability values and due to the incorrect channeling of 99% of 4.5 billion gallons of injectate, into a single 50 foot high layer (during a 23 year period) in an oversimplified model. We do however find that counsel did create sham issues of fact with respect to assertions that BP Chemicals had damaged the Eau Claire and Mt. Simon Formations; that its injectate would migrate vertically and contaminate water supplies and that its deepwell injection would cause earthquakes to occur at the Lima site. We find these averred assertions created sham issues of fact because at deposition counsel's expert admitted that he conducted no testing with respect to the formations (Depo. 477, 542, 543, 544); agreed that the injectate was properly located at a vertical level of 2,610 feet below the surface; admitted that he conducted no future modeling with respect to vertical migration (Depo. 462, 476) and admitted that earthquakes could not be predicted. (580, 583, 584, 607, 608). 19 At page 42 of the transcript of sanction proceedings, the trial court stated that: Based on the evidence the court heard during the course of the trial, and based on the arguments here, the evidence that Mr. Murray was of the opinion that they had a valid claim. That he thought he might win the case, even though it [sic] wasn't dismissed. Many cases are dismissed by way of directed verdicts. In - 26 - abused its discretion in declining to impose sanctions. While we are deeply concerned by undertones of an abuse of process suggested in this action, in deference to class members who are unaware that our legal system does not recognize actions based upon fear and fear alone, we affirm the court's ruling and decline to comment upon counsel's motives in pursuing this cause. BP Chemicals' first cross-assignment of error is sustained in part. II THE TRIAL COURT ERRED IN IGNORING THE MANDATORY SANCTION PROVISION OF OHIO CIV.R. 37(C) WHERE DEFENDANT'S COSTS OF PROOF AT TRIAL WERE DRAMATICALLY INCREASED BY PLAINTIFFS' IMPROPER DENIAL OF 23 OF 24 REQUESTED ADMISSIONS. Upon review, we find BP's Civ. R. 37(C) arguments to be unpersuasive. Affirmative responses to several of the interro- gatories would have required the appellant class to prejudice certain aspects of their claim, even though it has now been determined to be non-actionable. BP Chemicals' second assignment of error is overruled. The judgment of the trial court is affirmed. It is so ordered. every instance, in may instances, that doesn't mean that there was a frivolous filing of a claim, because they were dismissed. (Emphasis omitted.) - 27 - It is ordered that appellee recover of appellants its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. BLACKMON, P.J., AND O'DONNELL, J., CONCUR ANN DYKE JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .