Wendt v. Dickerson , 108 N.E.3d 1174 ( 2018 )

[Cite as Wendt v. Dickerson, 2018-Ohio-1034.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
CHRISTOPHER WENDT, ET AL : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiffs-Appellants : Hon. Earle E. Wise, J.
:
-vs- :
: Case No. 2017 AP 08 0024
JUDITH DICKERSON, ET AL :
:
Defendants-Appellees : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Tuscarawas County
Court of Common Pleas, Case No. 2012
CV 02 0135
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 19, 2018
APPEARANCES:
For Plaintiffs-Appellants For Defendants-Appellees
DAVID BUTZ STEVEN ANDERSON
4775 Munson Street N.W. 140 Fair Avenue N.W.
Box 36963 Box 1014
Canton, OH 44735 New Philadelphia, OH 44663
[Cite as Wendt v. Dickerson, 2018-Ohio-1034.]
Gwin, P.J.
{¶1} Appellants appeal the June 2, 2017 and July 14, 2017 judgment entries of
the Tuscarawas County Court of Common Pleas.
Facts & Procedural History
{¶2} In 1928, John R. Dickerson obtained full ownership interest in approximately
82 acres of real property located in Section 20 of Cadiz Township, in Harrison County.
Approximately four years later, John R. Dickerson transferred one-half of the property to
his wife, Marjorie I. Dickerson. John and Marjorie Dickerson divorced prior to the transfer.
On December 17, 1952, John and Marjorie Dickerson jointly transferred their interest in
the property to the Pittsburgh Consolidated Coal Company via a warranty deed; however
John and Marjorie each retained a one-half interest in all of the oil and gas and the rights
to drill and/or explore said oil and gas associated with the property. John and Marjorie
transferred the rights to the property’s surface, coal, and all other non-oil and gas
minerals. Pursuant to the 1952 transaction, the mineral rights were severed from the
surface estate.
{¶3} John Dickerson passed away on September 7, 1976. His mineral rights to
the property were not included in his estate. Marjorie Dickerson passed away on August
24, 1994. Her estate was not probated at the time of her death. The sole heirs of John
and Marjorie Dickerson are: Judith Dickerson, Mary Louise Foster, Elaine Harris, Claire
Dickerson, Richard Dickerson, Robert Dickerson, Raymond Dickerson, Constance Clark,
Deborah Snelson, Misty Engstrom, Ronald Dickerson, John Dickerson, and Wanda
Dickerson (“the Dickersons”).
{¶4} Pittsburgh Consolidated Coal strip-mined and reclaimed the property. In
1997, Pittsburgh Consolidated Coal sold the property to Neil Porter via a limited warranty
deed. In 2006, Neil Porter sold the property to plaintiffs-appellants Christopher and
Veronica Wendt (“the Wendts”) via a survivorship deed. The deed to the property was
recorded on April 21, 2006. The deed was subject to the reservation by, “John R.
Dickerson and Marjorie I. Dickerson, their heirs and assigns for all of the oil and gas with
the right to drill for in Warranty Deed filed for record December 17, 1952 in Volume 133,
page 69, Deed Records.”
{¶5} From 1952 to 2011, the Dickersons took no action related to their mineral
rights to the property. In 2011, the Dickersons gave John L. Dickerson a power of attorney
to deal with the inherited mineral rights on behalf of all the Dickerson heirs. On February
28, 2011, the Dickersons recorded two documents with the Harrison County Recorder’s
Office, each entitled, “Affidavit for Transfer of Real Estate Inherited.” Each of the affidavits
stated the purpose of the affidavit was to obtain a transfer of the above-described
premises to the heirs at law of Marjorie/John Dickerson and lists the names, addresses,
and portions inherited by each heir. Each affidavit states it transfers, by inheritance, the
“undivided one-half interest in all oil and gas contained in and underlying the hereinafter
described premises, together with the right to drill for, operate, produce, and market the
same.” In May of 2011, the Dickersons signed a lease with Chesapeake Exploration LLC
for the mineral rights to the property. Chesapeake recorded the lease on November 2,
2011.
{¶6} During 2011, the Wendts also sought to lease their mineral rights to the
property. The Wendts signed a mineral lease with Chesapeake in the spring of 2011.
The lease failed because of the Dickersons’ potential interest in the mineral rights.
{¶7} On October 11, 2011, the Wendts published a notification of abandonment
in the Steubenville Herald-Star newspaper. On October 21, 2011, the Wendts recorded
an affidavit of abandonment with the Harrison County Recorder’s Office. The affidavit
asserted the Wendts owned all the oil and gas rights by the automatic operation of R.C.
5301.56 and stated the “mineral interest previously owned by holders John and Marjorie
Dickerson were deemed abandoned pursuant to O.R.C. 5301.56(B) from 1989 to 2006
and vested in the owner of the surface as of March 22, 1992.” The Wendts executed a
second lease with Chesapeake on October 31, 2011, but the lease was terminated due
to the conflict in the mineral rights.
{¶8} On December 9, 2011, the Dickersons recorded two claims to preserve
mineral interest regarding any mineral interests inherited from Marjorie and John
Dickerson with the Harrison County Recorder’s Office.
{¶9} On February 9, 2012, the Wendts filed a complaint against the Dickersons
and Chesapeake Exploration LLC in the Tuscarawas County Court of Common Pleas.
The complaint brought nine causes of action: declaratory judgment, quiet title, injunction,
slander of title, unjust enrichment/quantum meruit, trespass, negligence/negligence per
se, potential interference with business relationship, and constructive trust. The Wendts
requested the trial court rule they were the lawful owners of the mineral rights. The
Wendts argued that, pursuant to the 1989 version of the Dormant Mineral Act, the mineral
rights merged with the surface estate no later than March 22, 1992. The Dickersons filed
a counterclaim alleging slander of title and intentional interference with business
relationships.
{¶10} The Wendts and Dickersons filed competing motions for summary judgment
in December of 2012. The Wendts dismissed Chesapeake as a party defendant on
January 8, 2013. The trial court granted the Wendts’ motion for summary judgment as it
pertained to their claim for declaratory judgment, quiet tile, and injunction. The trial court
found the 1989 version of the Ohio Dormant Mineral Act (“ODMA”) applied and, as such,
the mineral rights merged with the surface estate on March 22, 1992. The Wendts were
therefore the owners of the mineral rights underlying the surface estate. The trial court
found there were genuine issues of material fact as to the Wendts’ remaining claims.
{¶11} The trial court held a bench trial on the parties’ remaining claims. The
Wendts dismissed their claims for unjust enrichment and negligence. On January 15,
2014, the trial court issued its judgment entry that found the Wendts and Dickersons were
not entitled to judgment on their remaining claims.
{¶12} The Dickersons appealed to this Court and raised two assignments of error.
They argued that the trial court erred by finding the 1989 version of the ODMA applied to
this case and erred in finding the 1989 ODMA was constitutionally applied. In Wendt v.
Dickerson, 5th Dist. Tuscarawas No. 2014 AP 01 0003, 2014-Ohio-4615, this Court found
the trial court correctly determined the 1989 version of the ODMA applied, the mineral
rights automatically vested with the surface owners on March 22, 1992, and that the trial
court did not err when it found the 1989 ODMA was constitutionally applied to the
Dickersons.
{¶13} The Dickersons appealed this Court’s decision to the Ohio Supreme Court
and asserted three propositions of law: (1) the 2006 version of the ODMA controls the
vesting of title in a surface owner who did not make a claim for the mineral interests before
the 2006 enactment; (2) the 1989 version of the ODMA did not provide mineral owners
with the due process of law required under the state and federal constitution; and (3) the
ODMA is not now and never was self-executing. The Ohio Supreme Court accepted the
appeal, but held the case pending the resolution of several other cases already accepted
by the Supreme Court.
{¶14} On September 15, 2016, the Ohio Supreme Court reversed this Court’s
opinion on the authority of Corban v. Chesapeake Exploration, LLC, 149 Ohio St. 3d 512,
2016-Ohio-5796, 76 N.E.2d 1089 and Walker v. Shondrick-Nau, 149 Ohio St. 3d 282,
2016-Ohio-5793, 74 N.E.3d 427.
{¶15} Once the case was returned to the trial court, the trial court granted the
Wendts’ leave to file a motion for summary judgment relative to constitutional issues.
Accordingly, both the Wendts and Dickersons filed motions for summary judgment and
responses.
{¶16} The trial court issued a judgment entry on June 2, 2017. The trial court
found that, in Corban, the Ohio Supreme Court concluded the 2006 version of the ODMA
applies to all claims asserted after June 30, 2006 and that the Wendts did not assert their
ODMA claims against the Dickersons until after June 30, 2006. Thus, pursuant to Corban,
the 2006 version of the ODMA applies in this case. Further, that, pursuant to the majority
opinion in Corban, the General Assembly modified only the method and procedure by
which the right is recognized and protected and no vested, substantive right is altered.
Accordingly, the Wendts’ alleged property rights, including a cause of action, are not
vested property rights. The trial court found the application of the 2006 ODMA to the
Wendts in this case does not constitute the deprivation of the Wendts’ property and is
constitutional. The trial court overruled the Wendts’ motion for summary judgment.
{¶17} The trial court issued a second judgment entry on July 14, 2017 on counts
one, two, and three. The only issue the trial court addressed in this judgment entry was
whether the Wendts could establish a claim to mineral rights under the 2006 ODMA. The
trial court first found the Wendts’ claim fails under the 2006 ODMA because the mineral
rights they sought were not legally “dormant” as provided in the 2006 ODMA because
they were subject to a “savings event” of R.C. 5301.56(B)(3) during the preceding twenty
years, the two affidavits recorded on February 28, 2011 for the transfer of real estate
inherited.
{¶18} The trial court next found the Wendts’ claims fail under the 2006 ODMA
because they did not comply with the notice requirement of the 2006 ODMA as there is
no evidence in the record the Wendts ever attempted certified mail service or completed
certified mail service before they served the Dickersons by publication.
{¶19} Finally, the trial court found the Wendts’ claims fail in light of the Ohio
Supreme Court’s case of Dodd v. Croskey, 143 Ohio St. 3d 293, 2015-Ohio-2362, 37
N.E.3d 147, which held that a mineral-interest holder’s claim to preserve filed pursuant to
R.C. 5301.56(H)(1)(a) is sufficient to preclude the mineral interest from being deemed
abandoned if filed within sixty days after the notice of the surface owner’s intent to declare
those interests abandoned. The trial court noted that on October 21, 2011, the Wendts
recorded an affidavit of abandonment with the Harrison County Recorder’s Office and, on
October 11, 2011, published a notification of abandonment in the Steubenville Herald-
Star newspaper. Further, on December 9, 2011, the Dickersons recorded two claims to
preserve mineral interests and thus, the Dickersons properly preserved their mineral
rights. The trial court concluded the Wendts had no legal right to invoke the relief sought
in Counts one, two, and three under the 2006 ODMA. The trial court denied the Wendts’
motion for summary judgment, granted the Dickersons’ motion for summary judgment,
and found the legal title to the mineral rights at issue quieted in favor of the Dickersons.
{¶20} The Wendts filed an appeal of the June 2 and July 14, 2017 judgment
entries of the Tuscarawas County Court of Common Pleas and assign the following as
error:
{¶21} “I. THE TRIAL COURT ERRED WHEN IT HELD THAT THE RIGHTS
CONFERRED BY R.C. 5301.56 (IN EFFECT PRIOR TO JUNE 30, 2006) WERE NOT
PROPERTY RIGHTS PROTECTED BY THE UNITED STATES CONSTITUTION.
{¶22} “II. THE TRIAL COURT ERRED WHEN IT HELD THAT THE SEVERED
MINERAL INTEREST AT ISSUE WAS NOT SUBJECT TO JUDICIAL ABANDONMENT
UNDER R.C. 5301.56(B) (IN EFFECT JUNE 30, 2006).”
Summary Judgment Standard
{¶23} Civil Rule 56(C) provides, in pertinent part:
Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed in
the action, show that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. No evidence or
stipulation may be considered except as stated in this rule. A summary
judgment shall not be rendered unless it appears from the evidence or
stipulation, and only from the evidence or stipulation, 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, that party being
entitled to have the evidence or stipulation construed mostly strongly in the
party’s favor. A summary judgment, interlocutory in character, may be
rendered on the issue of liability alone although there is a genuine issue as
to the amount of damages.
{¶24} A trial court should not enter a summary judgment if it appears a material
fact is genuinely disputed, nor if, construing the allegations most favorably towards the
non-moving party, reasonable minds could draw different conclusions from the
undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St. 2d 427, 424 N.E.2d 311
(1981). The court may not resolve any ambiguities in the evidence presented. Inland
Refuse Transfer Co. v. Browning-Ferris Indus. of Ohio, Inc., 15 Ohio St. 3d 321, 474
N.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the
applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App. 3d 301, 733
N.E.2d 1186 (6th Dist. 1999).
{¶25} When reviewing a trial court’s decision to grant summary judgment, an
appellate court applies the same standard used by the trial court. Smiddy v. The Wedding
Party, Inc., 30 Ohio St. 3d 35, 506 N.E.2d 212 (1987). This means we review the matter
de novo. Doe v. Shaffer, 90 Ohio St. 3d 388, 2000-Ohio-186, 738 N.E.2d 1243.
{¶26} The party moving for summary judgment bears the initial burden of
informing the trial court of the basis of the motion and identifying the portions of the record
which demonstrate the absence of a genuine issue of fact on a material element of the
non-moving party’s claim. Drescher v. Burt, 75 Ohio St. 3d 280, 662 N.E.2d 264 (1996).
Once the moving party meets its initial burden, the burden shifts to the non-moving party
to set forth specific facts demonstrating a genuine issue of material fact does exist. Id.
The non-moving party may not rest upon the allegations and denials in the pleadings, but
instead must submit some evidentiary materials showing a genuine dispute over material
facts. Henkle v. Henkle, 75 Ohio App. 3d 732, 600 N.E.2d 791 (12th Dist. 1991).
I.
{¶27} In their first assignment of error, the Wendts contend the trial court erred
when it held the rights conferred by the 1989 version of the ODMA were not property
rights protected by the United States Constitution. Specifically, the Wendts argue they
are entitled to have the 1989 ODMA conclusive presumption applied to the reservation
confirmed in this litigation because this conclusive presumption and related accrued
cause of action are property rights under the Fifth and Fourteenth Amendments to the
U.S. Constitution, which cannot be taken without due process and constitute a taking.
We disagree with appellants.
{¶28} First, a majority of the justices in the Corban case did not utilize the
“conclusive presumption” analysis in their decision. 149 Ohio St. 3d 512, 2016-Ohio-5796,
76 N.E.3d 1089. While the three justices joining in the majority opinion opined that, “by
providing a conclusive presumption that the mineral interest had been abandoned in favor
of the surface owner if the holder failed to take timely action to preserve it, the legislature
provided an effective method of terminating abandoned mineral rights through a quiet title
action” in the 1989 ODMA, a fourth justice concurred in judgment only. Id. Further, a fifth
justice concurred the 1989 ODMA was not self-executing, the severed mineral interest
cannot revert to the surface owner absent judicial action, and agreed the 2006 version of
the ODMA applied to all claims asserted after June 30, 2006, but wrote separately to note
her analysis that the 1989 ODMA was ambiguous regarding what was required for a
severed mineral interest to be abandoned. Id.
{¶29} Second, even if the Ohio Supreme Court did find the 1989 ODMA created
a conclusive presumption, pursuant to the majority’s rationale in Corban, the General
Assembly did not divest a surface holder of a right to abandoned minerals accrued prior
to June 30, 2006. Id. The majority in Corban found the 1989 ODMA was not self-
executing and did not automatically transfer ownership of dormant mineral rights by
operation of law because a surface holder was required to commence a quiet title action
seeking a decree that the dormant mineral interest was deemed abandoned, and, at most,
the 1989 ODMA created an evidentiary presumption applied in a quiet title action that
these rights would vest if certain conditions were not proven by the mineral owner in a
quiet title action. Id. Thus, surface holders lost no property right when the ODMA was
amended, as under the 2006 ODMA they were not deprived of the right to bring a cause
of action for abandonment through a quiet title or declaratory judgment action. Id. Rather,
what changed was the procedural process, including statutory notice and recording
procedures, by which mineral rights are deemed abandoned and vested in the surface
holder. Id (“The General Assembly has not divested the surface holder of a right to
abandoned mineral interests that accrued prior to the effective date of H.B. 288, but,
rather, it modified only the method and procedure by which the right is recognized and
protected”).
{¶30} The majority further stated, “as this court has recognized, evidentiary rules
(such as the conclusive presumption established by the 1989 law) are procedural in
nature, and therefore, changing them does not alter a vested substantive right.” Id. As
explained by the majority in Corban, the Wendts lost, at most, the benefit of a procedural
evidentiary presumption, which does not implicate substantive due process concerns. Id.
While the Wendts and the dissent in Corban disagree with this characterization and
contend the 1989 ODMA created vested rights in certain property owners that cannot be
taken away without running afoul of the U.S. Constitution, we, as an appellate court, are
bound to follow the law and decisions of the Ohio Supreme Court, unless or until they are
reversed or overruled. State v. Lenior, 5th Dist. Delaware No. 10CAA010011, 2010-Ohio-
4910; Phillips v. Phillips, 5th Dist. Stark No. 2014CA00090, 2014-Ohio-5439. The Corban
decision has not been reversed or overruled and the Wendts did not attempt to appeal
the Ohio Supreme Court’s decision in Corban to the United States Supreme Court.
Accordingly, we are bound by the Corban decision.
{¶31} Further, the Ohio Supreme Court also reversed and remanded this case on
the authority of its decision in Walker v. Shondrick-Nau, 149 Ohio St. 3d 282, 2016-Ohio-
5793, 74 N.E.2d 427, and we are also bound by this decision. In Walker, the Ohio
Supreme Court reiterated its ruling from Corban and found the issue of whether the 1989
or 2006 ODMA applies “is resolved by Corban” as Corban held the 2006 version of the
ODMA applies to all claims after 2006 alleging that the rights to oil, gas, and other
minerals automatically vested in the owner of the surface estate prior to the 2006
amendments. Id. Further, that since there was no record of action being taken by the
appellant or his predecessor prior to the effective date of the 2006 amendment to have
the mineral rights deemed abandoned under the 1989 version of the ODMA, pursuant to
Corban, the 2006 version of the act applies. Id.
{¶32} Walker filed a petition for a writ of certiorari with the Supreme Court of the
United States. In his petition, Walker made the arguments advanced by the Wendts in
this case. Walker argued the dormant mineral interest was abandoned and had vested
in him on March 22, 1992, pursuant to the 1989 ODMA; that the 1989 ODMA was self-
executing; and that the application of the 2006 ODMA to an already abandoned and
vested dormant mineral interest was a violation of the due process clause of the federal
constitution. In Walker v. Shondrick-Nau, 137 S. Ct. 824, 196 L. Ed. 2d 601 (2017), the
United States Supreme Court denied Walker’s petition for certiorari. Thus, Walker
remains the law in Ohio as it has not been reversed or overruled. In this case, the Wendts’
claims were not asserted until 2011. Pursuant to Corban and Walker, the trial court did
not err in finding the 2006 ODMA applies to this case and in determining the application
of the 2006 ODMA against the Wendts does not violate the Due Process Clause of the
U.S. Constitution.
{¶33} Additionally, in this case, even if the 1989 ODMA did confer upon the
Wendts a substantive right in a conclusive evidentiary presumption, the Wendts due
process rights were not violated because their property rights never vested. The Ohio
Supreme Court has held that a right which is not absolute, “but is dependent for its
existence upon the action or inaction of another is not basic or vested, and deprivation
thereof does not constitute a deprivation of property” and if there is no deprivation of a
vested property right, it is not necessary to discuss the question of due process. Hatch
v. Tipton, 131 Ohio St. 364, 2 N.E.2d 875 (1936). In this case, any property rights the
Wendts had never vested, as their action in common pleas court was not filed prior to the
effective date of the 2006 ODMA on June 30, 2006, but instead was filed in 2012. Thus,
the Wendts’ due process rights were not violated because they had, at most, a contingent
right that never vested.
{¶34} The Wendts also argue their Fifth Amendment rights were violated as a
taking occurred regarding their property rights when the ODMA was amended in 2006.
We disagree. First, there was no federal or state taking when the 2006 ODMA went into
effect, as the Ohio Supreme Court held in Corban that the 1989 ODMA did not operate
automatically and was not self-executing; “rather, a surface owner seeking to merge those
rights with the surface estate under the 1989 law was required to commence a quiet title
action seeking a decree that the dormant mineral interest was deemed abandoned.”
Corban v. Chesapeake Exploration, LLC, 149 Ohio St. 3d 512, 2016-Ohio-5796, 76
N.E.2d 1089; Darrah v. Baumberger, 7th Dist. Monroe No. 15 MO 0002, 2017-Ohio-8025
(denying appellees’ argument that vested property rights were created in property owners
via the 1989 version of the ODMA and denying the argument that taking those vested
rights away constitutes an unconstitutional taking based upon the binding decision of the
Ohio Supreme Court in Corban). Since the Wendts did not commence their suit in
common pleas court prior to the effective date of the amended ODMA on June 30, 2006,
they never owned any mineral or substantive rights.
{¶35} Further, though some courts have concluded that a cause of action is
property within the meaning of the Takings Clause, the Ohio Supreme Court has held a
statute that is not destructive of vested property rights and merely modifies a remedial
right is constitutional and does not violate the Takings Clause. Hatch v. Tipton, 131 Ohio
St. 364, 2 N.E.2d 875 (1936); see also Greyhound Food Mgmt. Inc. v. City of Dayton,
852 F. Supp. 2d 866 (6th Cir. 1988) (stating the “Ohio Supreme Court has long held that
the constitution bans the passage only of retroactive substantive laws, but not of
retroactive remedial laws”). As the Ohio Supreme Court held in Corban, the General
Assembly modified only the method and procedure by which the right is recognized and
protected. Corban v. Chesapeake Exploration, LLC, 149 Ohio St. 3d 512, 2016-Ohio-
5796, 76 N.E.2d 1089. Accordingly, the 2006 ODMA merely modifies a remedial right
and does not violate the Takings Clause.
{¶36} Finally, the U.S. Supreme Court has held, “where courts merely clarify and
elaborate property entitlements that were previously unclear, they cannot be said to have
taken an established property right.” Stop the Beach Renourishment, Inc. v. Florida Dept.
of Env. Protection, 560 U.S. 702 (2010). “The Takings Clause only protects property
rights as they are established under state law, not as they might have been established
or ought to have been established.” Id. In this case, the Ohio Supreme Court clarified
the rights under the ODMA in Corban.
{¶37} Based on the foregoing, we find the trial court did not err in holding the 2006
version of the ODMA applies in this case; in finding the rights conferred by the 1989
version of the ODMA were not vested property rights protected by the United States
Constitution; and in finding the application of the 2006 ODMA to the Wendts in this case
does not constitute the deprivation of the Wendts property or due process and is
constitutional. The Wendts’ first assignment of error is overruled.
II.
{¶38} In their second assignment of error, the Wendts contend the trial court erred
when it held the severed mineral interest at issue was not subject to judicial abandonment
under the 2006 version of the ODMA. The Wendts argue since they filed an affidavit of
abandonment, they served the notice, and because there was a lack of preserving event
in the twenty (20) years before the notice, they are entitled to quiet title relief under the
2006 version of the ODMA.
{¶39} The parties dispute whether the Wendts fully complied with the 2006 ODMA
notice procedures and whether the affidavits for transfer of real estate inherited filed in
2011 qualify as a savings event under R.C. 5301.56(B)(3)(a). The Dickersons argue that
the Wendts’ notice of abandonment should not have been served by publication or without
explaining why service could not have been made by certified mail. The Wendts contend
since the Dickersons admit to receiving actual notice of the filing of the notice of
abandonment, any service error they made was harmless. The Dickersons contend the
affidavits for transfer of real estate inherited were filed eight months prior to the notice of
abandonment and they constitute a “title transaction” under R.C. 5301.47(F) and thus
qualify as a “savings event” under R.C. 5301.56(B)(3)(a). The Wendts argue the affidavits
of real estate inherited were not valid title transactions because they incorrectly describe
the next-of-kin. However, we find neither of these issues to be dispositive in this case.
{¶40} Even if the Wendts fully complied with the 2006 ODMA notice requirements
and even if the affidavits of real estate inherited do not qualify as a savings event under
R.C. 5301.56(B)(3)(a), the Wendts’ second assignment of error fails in light of several
rulings from the Ohio Supreme Court, as the Dickersons timely filed claims to preserve in
accordance with R.C. 5301.56(H)(1)(a).
{¶41} The Wendts do not dispute the Dickersons timely recorded two Claims to
Preserve Mineral Interests with the Harrison County Recorder in response to their notice;
they instead argue that they may seek judicial confirmation of the conclusive presumption
of abandonment, regardless of the filing of the claims to preserve, as there was no
preserving event in the twenty (20) years prior to their serving of the notice. We find this
argument fails pursuant to the rulings from the Ohio Supreme Court in Dodd v. Croskey,
Walker v. Shondrick-Nau, and Farnsworth v. Burkhart.
{¶42} In Dodd v. Croskey, 143 Ohio St. 3d 293, 2015-Ohio-2362, 37 N.E.3d 147,
the Ohio Supreme Court resolved the “question of whether a mineral-interest holder’s
claim to preserve a mineral interest from being deemed abandoned in accordance with
R.C. 5301.56(H)(1)(a) is sufficient to preserve that interest if the claim was filed after
notice of the surface owner’s intent to declare the mineral interest abandoned and outside
the 20-year window immediately preceding that notice” and addressed the “effect of a
claim to preserve filed under R.C. 5301.56(H) in the absence of an affidavit describing
the occurrence of one of the saving events described in subsections (B)(3)(a) through (f).”
{¶43} Like the Wendts in this case, the appellants in Dodd argued that, in order to
preclude abandonment, the 2006 ODMA requires evidence that a savings event occurred
in the 20-year window prior to the surface owner’s notice of intent to declare mineral
interests abandoned and thus a mineral interest holder’s claim to preserve that is filed
after the surface owner’s notice does not preclude the mineral rights from being deemed
abandoned if no saving event occurred within the preceding twenty years. Id. The
Supreme Court reiterated that there are two ways for a mineral interest holder to assert
that a mineral interest has not been abandoned after the surface owner files the notice of
abandonment: (1) the holder of the mineral interest can file a claim to preserve in
accordance with R.C. 5301.56(H)(1)(a) or (2) the holder can file an affidavit that describes
a savings event that occurred in the 20 years preceding the notice. Id.
{¶44} The Ohio Supreme Court stated, “nothing in the act states that a claim to
preserve filed under R.C. 5301.56(H)(1)(a) must refer to a saving event” that occurred
within the preceding 20 years. Id. Further, “nor do the notice procedures” in R.C.
5301.56(H)(1)(a) require that the claim to preserve be itself filed in the 20 years preceding
notice by the surface owner. Id. The Supreme Court held, “a mineral-interest holder’s
claim to preserve filed pursuant to R.C. 5301.56(H)(1)(a) is sufficient to preclude the
mineral interests from being deemed abandoned if filed within 60 days after notice of the
surface owner’s intent to declare those interests abandoned.” Id.
{¶45} The Ohio Supreme Court analyzed the facts of Dodd in light of their holding.
The mineral interest holder in Dodd did not file his affidavit in the 20 years preceding the
notice of intent to declare the mineral interests abandoned and he did not identify a saving
event in the 20 years preceding the notice. Id. However, he did file an affidavit that the
Court found, in form and substance, satisfied the requirements for a claim to preserve
under R.C. 5301.56(C) and it was filed within the 60 days after the notice by the surface
owner. Id. The affidavit outlined the history of transactions affecting the mineral rights
underlying the surface property, identified thirty-six people as the current owners of the
minerals and oil and gas who did not intend to abandon their rights, and stated these
people intended to preserve their rights. Id. The Court found this affidavit sufficient to
preserve the interest of the mineral holders. Id.
{¶46} The Supreme Court reaffirmed the holding in Dodd in Walker v. Shondrick-
Nau, 149 Ohio St. 3d 282, 2016-Ohio-5793, 74 N.E.2d 427. Citing Dodd, the Court found
a timely affidavit and claim to preserve mineral interests sufficient to prevent the mineral
rights from being “deemed abandoned” and prevent the mineral rights from vesting in the
surface owner when the affidavit stated the mineral-holder was the owner of the oil, gas,
coal, and other minerals in a 1965 deed and he had no intention of abandoning the
mineral interests. Id. The Supreme Court stated that “whether a saving event occurred
is not an issue that needs to be resolved in this case” because the mineral-holder’s “claim
to preserve his mineral rights was sufficient under the 2006 version of the act to prevent
the mineral rights from being deemed abandoned and vested in the owner of the surface
estate.” Id.
{¶47} The Supreme Court again reiterated its position in its denial of a motion for
reconsideration in Farnsworth v. Burkhart, 147 Ohio St. 3d 1439, 2016-Ohio-7677, 63
N.E.3d 157. In their motion for reconsideration, the Farnsworth appellants made the
same argument as the Wendts in this case, that, under the 2006 version of the ODMA, a
conclusive presumption arises once the surface owner serves the notice of abandonment
and files the notice of abandonment and that a claim to preserve filed pursuant to R.C.
5301.56(H)(1)(a) does not prevent the conclusive presumption from arising. Id. The Ohio
Supreme Court denied the motion for reconsideration. Id; see also Bayes v. Sylvester,
7th Dist. Mahoning No. 13 MO 0020, 2017-Ohio-4033.
{¶48} In this case, the Wendts published a notification of abandonment on
October 11, 2011 and, on October 21, 2011, recorded an affidavit of abandonment with
the Harrison County Recorder’s Office. The affidavit stated the mineral interests
previously owned by holders John and Marjorie Dickerson were deemed abandoned
pursuant to R.C. 5301.56(B) from 1989 to 2006 and vested in the owner of the surface
as of March 22, 1992.
{¶49} On December 9, 2011, the Dickersons recorded two claims to preserve
mineral interest regarding any mineral interests inherited from Marjorie Dickerson and
John Dickerson with the Harrison County Recorder’s Office. Pursuant to R.C.
5301.56(C), a claim to preserve must: (1) state the nature of the mineral interest claimed
and any recording information upon which the claim is based; (2) comply with R.C.
5301.52; and (3) state the holder does not intend to abandon, but instead to preserve,
the holder’s rights in the mineral interest. See also Dodd v. Croskey, 143 Ohio St. 3d 293,
2015-Ohio-2362, 37 N.E.3d 147.
{¶50} R.C. 5301.52 provides the claim should: (1) be in the form of an affidavit;
(2) state the nature of the claim being preserved and the names and addresses of the
persons for whose benefit the notice is being filed; (3) contain an accurate and full
description of all land affected by the notice in particular terms, except that if the claim is
founded upon a recorded instrument the description may be the same as in the recorded
instrument; (4) state the name of each record owner of the land affected by the notice,
together with the recording information of the instrument by which each record owner
acquired title to the land; and (5) be made by any person who has knowledge of the
relevant facts.
{¶51} The claims to preserve in this case are factually analogous to those filed in
Dodd and Walker. See also M&H Partnership v. Hines, 7th Dist. Harrison No. 14 HA
0004, 2017-Ohio-923 (finding affidavit constitutes a valid claim to preserve under R.C.
5301.56(H)(1)(a) and therefore no savings event needs to be specified therein); Kross v.
Ruff, 7th Dist. Jefferson No. 13 JE 0035, 2017-Ohio-4276 (holding affidavit stating the
nature of the interest, stating the relevant recording information, complying with R.C.
5301.52, and stating the holder’s intent to preserve their interest is sufficient to preserve
the mineral-holder’s interest pursuant to R.C. 5301.56(H)(1)(a)); DeVitas v. Draper, 7th
Dist. Monroe No. 13 MO 0017, 2017-Ohio-1136 (finding affidavit that specified the nature
of the severed mineral interest, pertinent title transactions affecting the interest, the
current surface owners, the heirs for whose benefit the notice was being filed, and stated
it was made pursuant to the provision of R.C. 5301.52 for the purpose of preserving the
royalty interest in oil and gas constitutes a valid claim to preserve pursuant to Dodd and
no savings event is needed).
{¶52} Here, the claims to preserve are in the form of an affidavit; state the mineral
interests claimed; list the recording information upon which the claim is based (1952
deed); list the names and addresses of the persons for whose benefit the notice is being
filed as they include a list of the Dickerson heirs and each of their addresses; contain a
full and accurate description of the land affected by the notice by including detailed
information about each tract of land; state the name of each record owner of the land
affected by the notice and the recording information by stating the Wendts are the current
record owners of the land, referencing the deed through which the Wendts acquired the
land, and including the specific language contained in the surface deed; are made by a
person who has knowledge of the relevant facts as they state the person making the claim
“has knowledge of the relevant facts set out above”; and state the “claimant, as holder of
such minerals, does not intend to abandon same, but, instead, intends to preserve its
rights in such interest.” Further, the claims to preserve were filed in the county recorder’s
office. R.C. 5301.56(H)(1). Finally, the Dickersons filed their claims within sixty (60) days
from the date the notice was published, as they filed their claims fifty-nine days after the
surface owners published the notice. R.C. 5301.56(H)(1). The claims to preserve comply
with R.C. 5301.56(C) and R.C. 5301.56(H) and thus preserve the rights of all the mineral-
interest holders in the land.
{¶53} Accordingly, even if there was no savings or preserving event of record in
the twenty (20) years prior to the Wendts’ serving of the notice and the Wendts properly
served the notice pursuant to the 2006 ODMA, the binding case law of the Ohio Supreme
court is controlling in this case such that the Dickersons preserved their rights by filing
timely claims to preserve that comply with both R.C. 5301.56(H)(1) and R.C. 5301.56(C).
Thus, the trial court did not err when it held the severed mineral interests at issue were
not subject to judicial abandonment under R.C. 5301.56 and when it found title to the
subject mineral rights in question should be quieted in favor of the Dickersons. The
Wendts’ second assignment of error is overruled.
{¶54} Based on the foregoing, appellants’ assignments of error are overruled.
The June 2, 2017 and July 14, 2017 judgment entries of the Tuscarawas County Court of
Common Pleas are affirmed.
By Gwin, P.J.,
Hoffman, J., and
Wise, Earle, J., concur