O'Kelley v. Rothenbuhler

[Cite as O'Kelley v. Rothenbuhler, 2021-Ohio-2488.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MONROE COUNTY
DR. ROBERT LEON O’KELLEY, JR.,
Plaintiff-Appellant,
v.
RONALD ROTHENBHULER ET AL.,
Defendants-Appellees.
OPINION AND JUDGMENT ENTRY
Case No. 20 MO 0009
Application for Reconsideration
BEFORE:
David A. D’Apolito, Gene Donofrio, Carol Ann Robb, Judges.
JUDGMENT:
Overruled.
Atty. David Wigham, and Atty. Emily Anglewicz, Roetzel & Andress, LPA, 222 South Main
Street, Suite 400, Akron, Ohio 44308, and Atty. Sara Fanning, Roetzel & Anress, 41 South
High Street, Huntington Center, 21st Floor, Columbus, Ohio 43215, for Plaintiff-Appellant
and
Atty. Donald Tennant, Jr., Tennant Law Offices, 38 Fifteenth Street, Suite 100, Wheeling,
West Virginia 26003, for Defendants-Appellees Ronald and Jennifer Rothenbuhler.
–2–
Atty. Todd Kidlow, and Atty. Heidi Kemp, Emens Wolper Jacobs & Jasin Law Firm, 250
West Main Street, Suite A, St. Clairsville, Ohio 43950, for Defendants-Appellees Sharon
Rothenbuhler et al. Atty. Steven Silverman, Babst, Calland, Clements & Zomnir, PC,
Two Gateway Center, 6th Floor, Pittsburgh, PA 15222, for Defendant-Appellee Eclipse
Resources I, LP. Atty. Ryan Regel, Yoss Law Office, 122 North Main Street, Woodsfield,
Ohio 43793, for Defendants-Appellees Constance and Randy Smith.
Dated: July 16, 2021
PER CURIAM.
{¶1} On April 12, 2021, Appellant, Dr. Robert Leon O’Kelley, Jr. filed an
application for reconsideration of our opinion and judgment entry in O’Kelley v.
Rothenbuher, 7th Dist. (Monroe) No. 20MO0009, 2021-Ohio-1167. Appellant asserts that
we should reconsider our conclusion, following additional briefing and oral argument, that
the references to a mineral interest in the chain of title at issue in this case were general
rather than specific based on the issuance of the Ohio Supreme Court’s opinion in
Erickson v. Morrison, -- Ohio St.3d --, -- N.E.3d --, 2021-Ohio-746.
{¶2} Erickson was issued after oral argument but prior to our opinion and
judgment entry in this case. Oral argument was heard in this matter on February 17,
2021. The Ohio Supreme Court issued its decision in Erickson on March 16, 2021. The
following day, Appellant filed a “Notice of Pending Relevant Ohio State Supreme Court
Case,” in which Appellant notified us of the issuance of Erickson, but, notably, did not
request additional briefing or oral argument, which he now contends are essential to our
application of Erickson.
{¶3} Because we undertook an analysis of Erickson in our opinion and judgment
entry, Appellees, Ronald Rothenbuhler, Jennifer Rothenbuhler, Sharon Rothenbuhler,
Kevin Rothenbuhler, Kenneth Rothenbuhler, Kristy Rothenbuhler Lumbatis, Jason
Lumbatis, Rothenbuhler Oil and Gas, LLC, Constance Smith, Randy Smith and SWN
Production (Ohio), LLC, argue that Appellant merely disagrees with our conclusion, rather
than points to an obvious error in our reasoning.
{¶4} App.R. 26 provides for the filing of an application for reconsideration in this
Court, but includes no guidelines to be used in the determination of whether a decision is
Case No. 20 MO 0009
–3–
to be reconsidered. Deutsche Bank Natl. Trust Co. v. Knox, 7th Dist. Belmont No. 09-
BE-4, 2011-Ohio-421, 2011 WL 334508, ¶ 2, citing Matthews v. Matthews, 5 Ohio App.3d
140, 143, 450 N.E.2d 278 (10th Dist.1981). The test generally applied is whether the
application for reconsideration calls to the attention of the court an obvious error in its
decision or raises an issue for our consideration that was either not considered or not fully
considered in the appeal. Id.{¶5} An application for reconsideration is not designed for use in instances where
a party simply disagrees with the conclusions reached and the logic used by an appellate
court. Deutsche Bank at ¶ 2, citing State v. Owens, 112 Ohio App.3d 334, 336, 678 N.E.2d
956 (11th Dist.1996). Rather, App.R. 26 provides a mechanism to prevent the possible
miscarriage of justice that may arise where an appellate court makes an obvious error or
renders an unsupportable decision under the law. Id.{¶6} At the beginning of the application for reconsideration, Appellant cites four
cases for the proposition that “[t]his Court and others have granted reconsideration in
similar circumstances where appellate courts were not briefed on a dispositive Ohio
Supreme Court decision issued shortly after a case was decided.” (App. at p. 3.) As
Appellees correctly counter, Erickson was decided prior to our opinion and judgment entry
in this case, and we applied Erickson to the facts in this case. We wrote:
On March 16, 2021, the Ohio Supreme Court further explained the
Blackstone step-two “general vs. specific” distinction in Erickson v.
Morrison, -- Ohio St.3d --, -- N.E.3d --, 2021-Ohio-746. In that case, the
root of title deed and all of the recorded transfers thereafter contained a
verbatim restatement (with the exception of the word “said”) of the original
severance language, which read, “Excepting and reserving therefrom all
coal, gas, and oil with the right of said first parties, their heirs and assigns,
at any time to drive and operate for oil and gas and to mine for coal.” Id. at
¶ 5. The surface owners argued that the reference was general because it
did not identify the reserving party, based on the Ohio Supreme Court's
holding in Blackstone [v. Moore, 155 Ohio St.3d 448, 2018-Ohio-4959, 122
N.E.3d 132.]
Case No. 20 MO 0009
–4–
However, the Erickson Court opined that Blackstone “did not hold that a
reference is required to identify both the type of interest and by whom it is
reserved to preserve the interest.” (Emphasis in original) Id. at ¶ 24. The
Erickson Court cited the 1988 amendment of the MTA, which required
greater specificity in order for recorded notices to preserve preexisting
interests, to demonstrate that the identity of the reserving party was not
required in order for the reference in the muniments of title to be specific:
[W]hen the General Assembly amended the requirements for
recording a notice of preservation to include the name of the
interest's owner, a description of the property affected, and
the recording information creating a property interest affected
by the notice, it did not also amend R.C. 5301.49(A) to require
that a reference in the muniments of title contain that same
information in order to preserve a preexisting interest from
being extinguished after 40 years from the root of title.
Id. at ¶ 29.
In defining the characteristics of a “general” reference, the Ohio Supreme
Court further observed that “R.C. 5301.49(A) is directed at “ ‘the common
conveyance practice for draftsmen to include in the deed description some
such language as “subject to easements and use restrictions of record.’ ” ”
Id. at ¶ 30, quoting Smith, The New Marketable Title Act, 22 Ohio St.L.J.
712, 717 (1961). The Erickson Court continued:
Dean Allan F. Smith explained that “[t]his is a device which is
probably adequate to protect the grantor from liability on his
covenants for title in a warranty deed should there be burdens
of that type on record. This throws the risk of title search on
the purchaser.” Id. But such a general reference leaves it
unclear whether a prior interest in fact exists. And as Dean
Smith stated, “The Ohio Act * * * wisely adopted the provision
Case No. 20 MO 0009
–5–
in the Model Act which makes such a general reference
inadequate to preserve the ancient interests even though the
general reference appears in the muniments of title which
make up the forty-year chain.” Id.Erickson, supra, ¶ 30.
Because the surface owners’ root of title and subsequent conveyances
“[were] made subject to a specific, identifiable reservation of mineral rights
recited throughout their chain of title using the same language as the
recorded title transaction that created it,” the Erickson Court held that the
reference was specific not general. In so holding, the Ohio Supreme Court
observed that the reference in Erickson did not contain “vague, boilerplate
language excepting any reservations that may – or may not – exist,” but,
instead, “a reference to a specific, identifiable reservation of mineral rights
that can be determined through a reasonable title search.” Id. at ¶ 3, 32.
Although the Ohio Supreme Court's recent decision in Erickson serves to
further clarify the Blackstone step-two “general vs. specific” distinction, we
find nonetheless that the reference at issue in the above-captioned case –
“excepting the oil and gas minerals including coal underlying the same
heretofore conveyed” – is general not specific. Simply stated, the reference
lacks any “narrow precise considerations,” “limited details,” or “particulars”
as described in Blackstone.
First, the reference is not a verbatim restatement of the original severance
language. The original severance deed excepts and reserves “[a]ll oil, gas
and minerals (including coal) of whatsoever kinds.” (Emphasis added.) The
phrase in the reference at issue in this appeal – “the oil and gas minerals
including coal” – could refer to a prior deed that severed all of the oil, gas,
and coal, or a prior deed that severed less than all of the oil, gas, and coal.
Therefore, we find that the description of the interest lacks specificity.
Case No. 20 MO 0009
–6–
Next, the original severance language excepts and reserves to the grantor
the “full right to develop same and to operate on said premises therefore
with the incidental rights and privileges necessary to such development and
operation including among other things the right to locate and drill thereon
and therein oil wells and gas wells to lay pipes to and from said wells.” The
reference at issue here omits the foregoing language from the severance
deed, which serves to describe in detail the rights of the reserving party with
respect to the mineral interest.
Further, the parties dispute on appeal whether the clause “heretofore
conveyed” modifies the phrase “the oil and gas minerals including coal” or
“the same.” We need not resolve the dispute over the language in the deed,
because the mere fact that the reference is susceptible to more than one
interpretation is further evidence that the reference is general not specific.
Even assuming the “heretofore conveyed” modifies “oil and gas minerals
including coal,” we find that the reference sounds to the reader like vague,
boilerplate language excepting reservations that may or may not exist,
rather than a specific, identifiable reservation of mineral rights using the
same language that created it. Based on the ambiguity of the reference, we
find that it is general not specific.
O'Kelley v. Rothenbuhler, 7th Dist. Monroe No. 20 MO 0009, 2021-Ohio-1167, ¶
40-48.
{¶7} In his application for reconsideration, Appellant advances three substantive
arguments that we misapplied the Erickson decision. First, Appellant argues that a
repetition need not be verbatim in order to be specific. Next, Appellant argues that the
development language from the severance deed is not required for a reference to be
specific. Finally, Appellant argues the Erickson Court opined that, even in the absence
of the phrase “previously excepted by Nick Kuhn, their [sic] heirs and assigns,” the
reference in Blackstone would still be a specific reference.
Case No. 20 MO 0009
–7–
{¶8} Appellant’s arguments misinterpret both our holding and Erickson. We did
not find that a repetition must be verbatim, or must include development language, in
order to be specific. We merely found that reference in this case would have been more
detailed if it contained the verbatim language (“all of the oil and gas”) and the development
language. For the same reason, we disagree with Appellant’s interpretation of Erickson
as it relates to the “Nick Kuhn” language in the reference in Blackstone. The Erickson
Court rejected the argument that Blackstone stands for the proposition that a reference
must include the reserving party’s name in order to be specific. While the Erickson Court
opined that the reserving party’s name is not required for a reference to be specific, it did
not hold that the reference in Blackstone, absent the “Nick Kuhn” phrase would have been
specific. The “Nick Kuhn” phrase in Blackstone, like the verbatim restatement and the
development language in this case, are factors to be considered on a case-by-case basis
to determine whether a reference is general or specific.
{¶9} Accordingly, Appellant’s application for reconsideration is overruled.
JUDGE DAVID A. D’APOLITO
JUDGE GENE DONOFRIO
JUDGE CAROL ANN ROBB
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 20 MO 0009