Albanese v. Batman, Nos. 2015–0120

• Court: United States State Supreme Court of Ohio
• Writing for the Court: KENNEDY, J.
• Citation: 68 N.E.3d 800,2016 Ohio 5814,148 Ohio St.3d 85
• Decision Date: 15 September 2016
• Docket Number: Nos. 2015–0120,2015–0121.
• Parties: ALBANESE, Exr., Appellant, v. BATMAN et al., Appellees. Lipperman, Appellant, et al., v. Batman et al., Appellees.

148 Ohio St.3d 85
68 N.E.3d 800
2016 Ohio 5814

ALBANESE, Exr., Appellant,
v.
BATMAN et al., Appellees.

Lipperman, Appellant, et al.,
v.
Batman et al., Appellees.

Nos. 2015–0120
2015–0121.

Supreme Court of Ohio.

Submitted Jan. 6, 2016.
Decided Sept. 15, 2016.

68 N.E.3d 802

Lancione, Lloyd & Hoffman Law Offices Co., L.P.A., Richard L. Lancione, and Tracey Lancione Lloyd, Bellaire, for appellants in both cases.

Geiger, Teeple, Robinson & McElwee, P.L.L.C., and Bruce E. Smith, Alliance, for appellees Nile E. and Katheryn Batman in both cases.

Kincaid, Taylor & Geyer, Scott D. Eickelberger, William J. Taylor, David J. Tarbert, Zanesville, and Ryan H. Linn, for appellee Hess Ohio Developments, L.L.C., in case No. 2015–0120.

Steptoe & Johnson, P.L.L.C., Lyle B. Brown, and J. Kevin West, Columbus, for appellees Equity Oil & Gas Funds, Inc., and Reserve Energy Exploration Company, in case No. 2015–0121.

Zeiger, Tigges & Little, L.L.P., Marion H. Little Jr., and Christopher J. Hogan, Columbus, for appellees XTO Energy, Inc., and Phillips Exploration, Inc., in case No. 2015–0121.

KENNEDY, J.

148 Ohio St.3d 85

I. Introduction

{¶ 1} In these discretionary appeals from the Seventh District Court of Appeals, we address two cases involving the application of the Ohio Dormant Mineral Act ("ODMA"), codified in R.C. 5301.56. Appellant Wayne Lipperman owns a parcel of real property in Belmont County, Ohio, and appellant Mark Albanese is the executor of the estate of James Albanese III, which owns a separate parcel of real property in Belmont County, Ohio. Appellees Nile and Katheryn Batman claim to hold an interest in the minerals underlying the properties owned by Lipperman and the estate of James Albanese. James

148 Ohio St.3d 86

Albanese, Lipperman, and the Batmans all leased their oil and gas rights in the properties at issue.

{¶ 2} James Albanese and Lipperman filed separate actions seeking to quiet title to their respective properties, asserting that the severed mineral interests held by the Batmans had been abandoned. They also sought to cancel any oil and gas leases executed in relation to the Batmans' interests in their properties. James Albanese died in May 2013, and Mark Albanese, as the executor of the estate, was substituted as the plaintiff in that case.

{¶ 3} Applying this court's holding in Corban v. Chesapeake Exploration, L.L.C., ––– Ohio St.3d ––––, 2016-Ohio-5796, ––– N.E.3d ––– –, we hold that the 2006 version of the ODMA applies in these cases and because neither James Albanese nor Lipperman complied with the notice and affidavit requirements in R.C. 5301.56(E), the mineral interests are preserved in favor of their holder, the Batmans.

{¶ 4} Therefore, we affirm the judgment of the court of appeals in both cases, albeit for different reasons than those expressed in the court of appeals' decisions.

II. Facts and Procedural History

A. The Batmans' Mineral Interest

{¶ 5} In 1952, Mayme Sulsberger died and left her interest in the mineral rights underlying the properties at issue in this case to her daughter, Frances Batman. On September 9, 1981, Frances executed an "Affidavit and Notice of Claim of Interest in Land" that referenced mineral interests that she held in properties in Belmont County, Ohio, and she recorded the affidavit in the office of the Belmont County

68 N.E.3d 803

Recorder that same month. Shortly thereafter, Frances died, and pursuant to the terms of her will, her mineral interests in the Belmont County properties passed to her son, Nile Batman.

{¶ 6} In 1989, almost eight years after her death, Frances's will was filed in both the Belmont County Probate Court and the Belmont County Recorder's Office.

B. Lipperman's Property

{¶ 7} Lipperman owns 41 acres of property in Pultney Township, Belmont County, Ohio. On April 7, 2006, Lipperman leased the oil and gas rights in his property to Reserve Energy Exploration Company ("Reserve"). In January 2007, Reserve assigned the Lipperman lease to Equity Oil & Gas Funds, Inc. ("Equity"). In May 2008, Equity assigned its deep-oil-and-gas rights from the lease to PC Exploration, Inc., n.k.a. Phillips Exploration, Inc.

148 Ohio St.3d 87

{¶ 8} In November 2008, the Batmans leased their oil and gas rights in Lipperman's property to Reserve. In January 2009, Reserve assigned the deep-oil-and-gas rights from that lease to PC Exploration.

C. The Albanese Property

{¶ 9} The Albanese estate owns 104 acres of property in Smith Township, Belmont County, Ohio. In 2011, James Albanese leased oil and gas rights underlying his property to Hess Ohio Developments, L.L.C.

{¶ 10} In October 2008, the Batmans leased their oil and gas rights from their mineral interests that underlie the Albanese property to Mason Dixon Energy, Inc. Mason Dixon Energy subsequently assigned its rights under the Batman lease to Hess Ohio Developments.

D. Litigation

{¶ 11} On January 20, 2012, James Albanese filed a quiet-title action against the Batmans, Mason Dixon Energy, and Hess Ohio Developments. On February 15, 2012, Lipperman filed a quiet-title action against the Batmans, Reserve, Equity, PC Exploration, and XTO Energy, Inc. (a parent company of Phillips Exploration). Lipperman and James Albanese sought to have the mineral interests underlying their properties that were held by the Batmans deemed abandoned and sought the cancellation of oil and gas leases (or assignment of those leases) entered into by the Batmans with the energy companies.

{¶ 12} Hess Ohio Developments filed a motion for summary judgment in the Albanese case, and Reserve and Equity filed a motion for summary judgment in the Lipperman case. Holding that the 20–year look-back period under the 1989 ODMA is a rolling period,¹ the trial court held that the 1981 filing of Frances's affidavit and the 1989 filing of Frances's will in Ohio both qualified as saving events under the 1989 ODMA, thereby preserving the Batmans' mineral interest, as well as the leases

68 N.E.3d 804

(and assignment of leases) they had made, in both cases.

148 Ohio St.3d 88

Therefore, the trial court granted summary judgment in favor of the energy companies in both cases.

{¶ 13} Mark Albanese, as executor, and Lipperman appealed from their respective cases. In each appeal, the court of appeals held that the trial court erred in holding that the 20–year look-back period is a rolling period. Instead, the court of appeals held that the 20–year look-back period under the 1989 ODMA is a fixed period from March 22, 1969, through March 22, 1989 (20 years before the effective date of the 1989 ODMA through the effective date of the 1989 ODMA), that is extended to March 22, 1992, by the statute's three-year grace period. In each case, the court of appeals held that the 1981 filing of Frances Batman's affidavit was a saving event under the 1989 ODMA that operated to preserve the severed mineral rights in Frances, and subsequently the Batmans, because it occurred within the 20 years prior to March 22, 1989. Consequently, neither opinion considered whether the filing of Frances's will was a saving event under the 1989 ODMA.

{¶ 14} Mark Albanese and Lipperman appealed to this court; Mark Albanese's case was assigned case No. 2015–0120, and Lipperman's case was assigned case No. 2015–0121. Each argued in his first proposition of law that the look-back period of the 1989 ODMA was a rolling period and in his second proposition of law that the recording of an out-of-state will is not a saving event. Lipperman argued in a third proposition of law that XTO Energy and Phillips Exploration have no standing to appear in case No. 2015–0121.

{¶ 15} We accepted both cases but held proposition of law No. 1 in each case for our decision in case No. 2014–0803, Walker v. Shondrick–Nau, 143 Ohio St.3d 1403, 2015-Ohio-2747, 34 N.E.3d 131.

III. Analysis

A. The 2006 Version of the ODMA Applies

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