Pike v. Piatt

[Cite as Pike v. Piatt, 2017-Ohio-642.]
STATE OF OHIO, MONROE COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
JEFFREY D. PIKE AND MINDI A. PIKE )
TRUST, ET AL., )
)
PLAINTIFFS-APPELLEES, )
) CASE NO. 16 MO 0014
V. )
) OPINION
MAXINE PIATT, ET AL., ) AND
) JUDGMENT ENTRY
DEFENDANTS-APPELLANTS. )
CHARACTER OF PROCEEDINGS: Motion to Dismiss
JUDGMENT: Dismissed
APPEARANCES:
For Plaintiffs-Appellees Attorney Ethan Vessels
Attorney Olivia Walker
309 Second Street
Marietta, Ohio 45750
For Defendants-Appellants Attorney Matthew W. Warnock
Attorney Daniel C. Gibson
Attorney Daniel E. Gerken
100 South Third Street
Columbus, Ohio 43215
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Carol Ann Robb
Dated: February 16, 2017
[Cite as Pike v. Piatt, 2017-Ohio-642.]
PER CURIAM.
{¶1} Plaintiffs-appellees, Jeffrey D. Pike and Mindi A. Pike Trust, Jeffrey
Pike and Mindi Pike, Trustees, et al., have filed a motion to dismiss as untimely the
appeal of defendants-appellants, Maxine Piatt, et al.
{¶2} Appellants filed an appeal from a Monroe County Common Pleas Court
judgment denying their motion to vacate that court’s decision holding their mineral
interests in the subject property had vested in appellees as surface owners after
applying the 1989 Ohio Dormant Mineral Act (ODMA).
{¶3} This case began as a quiet title action involving the ODMA. Appellees
own a 40-acre parcel of property in Monroe County, Ohio. The mineral interests
were severed from the property in 1961 and were sold to appellants’ predecessors-
in-interest. Appellees filed a quiet title action arguing that no savings events had
occurred in 20 years and that they, as the surface owners, should now be the owners
of the mineral rights to the property.
{¶4} Appellants argued that two savings events had occurred, that the 2006
ODMA applied rather than the 1989 ODMA, and that the 1989 ODMA is not self-
executing. The trial court granted summary judgment to appellees on April 9, 2015,
and held that the 1989 ODMA applied, no savings events had occurred, and the
mineral interests vested in Appellees as the surface owners.
{¶5} Appellants did not appeal that decision. Almost a year later, on March
18, 2016, appellants filed a Civ.R. 60(B) motion to vacate, explicitly conceding that
the motion was filed as result of “clerical missteps,” which they argued constituted
excusable neglect resulting in the failure to file an appeal. The trial court denied
appellants’ motion to vacate.
{¶6} Appellants’ appealed to this court. On appellees’ motion, we dismissed
the appeal on July 11, 2016, stating that appellants could not use Civ.R. 60(B) as a
substitute for a timely appeal. Pike v. Piatt, 7th Dist. No. 16 MO 0007, 2016-Ohio-
5041, ¶ 10.
{¶7} Then, on October 7, 2016, appellants filed another Civ.R. 60(B) motion
to vacate the trial court’s April 9, 2015 judgment based on the recent decision in
Corban v. Chesapeake Expl., L.L.C., Slip Opinion No. 2016-Ohio-5796. In its
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November 16, 2016 judgment, the trial court observed that a subsequent change in
the case law in an unrelated case is not grounds for Civ.R. 60(B) relief. The trial
court found that other litigants in similar ODMA cases who timely appealed their
judgments and whose judgments were not final may have been reversed by Corban’s
holding. But appellants did not timely appeal. Therefore, the trial court found that the
judgment against appellants was final and they could not use Civ.R. 60(B) as a
substitute for a timely appeal. Thus, the trial court denied appellants’ Civ.R. 60(B)
motion to vacate.
{¶8} On December 12, 2016, appellants’ filed a notice of appeal from the
November 16, 2016 judgment.
{¶9} On December 21, 2016, appellees filed a motion to dismiss. They
argue we have no jurisdiction to consider the merit of this case because a change in
controlling case law is not a reason to obtain Civ.R. 60(B) relief. They assert that
once again, appellants are attempting to use Civ.R. 60(B) as a substitute for a timely
appeal.
{¶10} In response, appellants assert that they timely filed their notice of
appeal from the trial court’s November 16, 2016 judgment. They argue appellees are
confusing the issue of whether this appeal was timely filed with the issue of whether
appellants should prevail on the merits of the case. Appellants contend the merits of
this appeal are completely unrelated to whether they timely filed their notice of appeal
in this case.
{¶11} This Court has expressly held that “[a] Civ.R. 60(B) motion for relief
from judgment cannot be used as a substitute for a timely appeal or as a means to
extend the time for perfecting an appeal from the original judgment.” (Emphasis
deleted.) Hamilton v. Spirtos, 7th Dist. No. 01-C.A.-58, 2002-Ohio-1562, ¶ 30, citing
Key v. Mitchell, 81 Ohio St. 3d 89, 90-91, 689 N.E.2d 548 (1998). Any claims or
arguments that were not raised in a timely appeal, but which could have been raised,
are precluded from being raised in a subsequent Civ.R. 60(B) motion. Id. at 91. As
the Ohio Supreme Court held in State ex rel. Durkin v. Ungaro, 39 Ohio St. 3d 191,
529 N.E.2d 1268 (1988):
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Such procedural devices cannot be used in order to obtain review of a
judgment where a timely appeal was not filed. If we were to hold
differently, judgments would never be final because a party could
indirectly gain review of a judgment from which no timely appeal was
taken by filing a motion for reconsideration or a motion to vacate
judgment.
Id. at 193.
{¶12} “When a Civ.R. 60(B) motion is used as a substitute for a timely appeal,
and when the denial of that motion is subsequently appealed, the proper response is
the dismissal of the appeal.” Hamilton, supra, at ¶ 35, citing State ex rel. Richard v.
Cuyahoga Cty. Commrs., 89 Ohio St. 3d 205, 729 N.E.2d 755 (2000); Key v. Mitchell,
81 Ohio St. 3d 89, 91, 689 N.E.2d 548 (1998); and State ex rel. Durkin v. Ungaro, 39
Ohio St. 3d 191, 529 N.E.2d 1268 (1988).
{¶13} Appellants contend that a subsequent change in the controlling case
law is grounds for Civ.R. 60(B) relief from the judgment even though the judgment
from which they seek relief was final.
{¶14} The Ohio Supreme Court, however, has held that “[a] subsequent
change in the controlling case law in an unrelated proceeding does not constitute
grounds for obtaining relief from final judgment under Civ.R. 60(B).” Doe v. Trumbull
Cty. Children Services Bd., 28 Ohio St. 3d 128, 502 N.E.2d 605 (1986), at paragraph
one of the syllabus. The Court reiterated “[a] party may not use a Civ.R. 60(B)
motion as a substitute for a timely appeal.” Id. at paragraph two of the syllabus.
{¶15} Here, appellants are again attempting to use a Civ.R. 60(B) motion as a
substitute for a timely appeal.
{¶16} Accordingly, we hereby dismiss this appeal. Costs taxed against
appellants.
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{¶17} Final order. Clerk to serve notice as provided by Civil Rules.
Donofrio, J. concurs.
Waite, J. concurs.
Robb, P.J. concurs.