Hartline v. Atkinson
| Decision Date | 08 December 2020 |
| Docket Number | Case No. 20 MO 0004 |
| Citation | 2020 Ohio 5605 |
| Parties | KERRY R. HARTLINE ET AL., Plaintiffs-Appellees, v. ELLA J. ATKINSON ET AL., Defendants-Appellants. |
| Court | Ohio Court of Appeals |
OPINION AND JUDGMENT ENTRY
Atty. Daniel Corcoran and Atty. Kristopher Justice, Theisen Brock, 424 Second Street, Marietta, Ohio 45750, for Plaintiffs-Appellees and
Atty. David Wigham, Roetzel & Andress, LPA, 222 South Main Street, Suite 400, Akron, Ohio 44308 and Atty. Sara Fanning, Roetzel & Andress, LPA, 41 South High Street, Huntington Center, 21st Floor, Columbus, Ohio 43215, for Defendants-Appellants.
{¶1} Defendants-appellants, Carole Brandt, David Brandt, Mary Brandt, James Townley Brandt, Jill Brandt, Edward Atkinson Brandt, Jr., Nancy Brandt, Forest Andrew Brandt, Elizabeth Gray Hupp Jensen, Peter Jensen, Barbara Miller Hupp Wilson, Bradley Wilson, John Weibel, Dorothy Weibel Crowell, Douglas Crowell, Jeffrey Grant Crowell, Lisa Crowell, Kathleen Crowell Winkle, Richard Kevin Winkle, Laurie Cox Humphrey, Buttons Humphrey, W. Lloyd Cox, Jr., Grady Poe, Mary Leslie Smith Donhoff, Alan Donhoff, Stephen Smith, Mollie Smith, Bradley Smith, Madeline Smith, Glenn Roland Smith, Jennifer Smith, Nancy Cooley Brooks, Ellen Gray Brooks, Christopher Wicke, Carol Brooks Ditzel, Alan Ditzel, Paul Brooks, III, Hope Brooks, Katherine Poe Singh Baghel, and Samuel James Quigley (collectively referred to as the Atkinsons), appeal the Monroe County Common Pleas Court judgment granting summary judgment in favor of plaintiffs-appellees, Kerry and Mary Hartline (the Hartlines), on the Hartlines' claim to have the Atkinsons' oil and gas interest declared abandoned and to quiet title in the Hartlines' names.
{¶2} The Atkinsons are the heirs of Ella Atkinson. In 1914, Ella conveyed 65.275 acres of property in Monroe County (the Property) to Charles C. Webb by way of the "Atkinson Deed." The Atkinson Deed stated that the Property was free and clear from all encumbrances "except the vein of coal known as #8 or Pittsburgh Vein; and half the royalty of oil and gas, and the privilege for mining and drilling on said farm" (Atkinson Interest).
{¶3} In 1918, Charles C. Webb and his wife Belle conveyed their interest to Isaac Ady by way of the "Webb Deed." The Webb Deed accepted and reserved "the full three fourths (3/4) of all the oil and gas lying into and under the above described tracts of land" (Webb Interest).
{¶4} Ella died in 1940, survived by her two daughters, Ethel Atkinson and Maude Steele. Maude died in 1961, leaving her entire interest to her sister Ethel. Ethel died in 1965, leaving all of her property, including the Atkinson Interest, to Dorothy Atkinson. Dorothy died in 1980, leaving her property, including the Atkinson Interest, in various shares to the Atkinsons or their ancestors.
{¶5} Charles and Elle Webb had two children and four grandchildren. Defendants Vivian Dillon, Pamela Ensinger, Patricia Rude, and Paul Bierie (the Webbs) are Charles and Elle's grandchildren.
{¶6} In December 2004, the Hartlines acquired title to the surface of approximately 85 acres of land, including the Property which encompasses both the Atkinson Interest and the Webb Interest.
{¶7} On March 6, 2017, the Hartlines filed a complaint asserting ten claims regarding the Atkinson Interest and the Webb Interest. With regard to the Atkinson Interest, the complaint asserted the interest had expired because it lacked any words of inheritance (first claim), it was a limitation on the grantor's warranty (third claim), it had been extinguished by operation of the Marketable Title Act (MTA) (fourth claim), it had been abandoned under the Dormant Mineral Act (DMA) (sixth claim), it had been abandoned under common law (eighth claim), and title to the Atkinson Interest should be quieted in favor of the Hartlines (ninth claim). With regard to the Webb Interest, the complaint asserted it had expired because it lacked words of inheritance (second claim), it had been extinguished by operation of the MTA (fifth claim), it had been abandoned under the DMA (seventh claim), and that title to the Webb Interest should be quieted in favor of the Hartlines (tenth claim).1
{¶8} The Hartlines also included a Notice of Abandonment in the complaint. The complaint, and attached Notice of Abandonment, was issued by certified mail to the Atkinsons on March 6 and 7. The complaint was mailed to 56 separate Atkinson defendants in 14 states and the District of Columbia. The complaints with attached Notices arrived on various dates through March 31, 2017.
{¶9} On March 30, 2017, the Hartlines also served by publication a Notice of Abandonment in the Monroe County Beacon to all of Ella Atkinson's unknown heirs, spouses, devisees, executors, administrators, next of kin, and assigns.
{¶10} On April 26, 2017, the Hartlines filed an Affidavit of Abandonment. On May 26, 2017, Atkinson appellant Dorothy Crowell recorded an Affidavit of Preservation.
{¶11} All parties filed motions for summary judgment. The trial court granted the Hartlines' First Motion for Partial Summary Judgment with respect to their sixth claim. It found that the Atkinson Interest was abandoned and vested in the Hartlines pursuant to R.C. 5301.56(H)(2). The court quieted title in the Hartlines' favor against the Atkinsons with respect to the Atkinson Interest. The court also ruled that the Hartlines' first, third, fourth, and eighth claims were moot. Additionally, the trial court granted the Webbs' motion for summary judgment with respect to the Webb Interest.
{¶12} The Atkinsons filed a timely notice of appeal on March 17, 2020. They now raise a single assignment of error.
{¶13} The Atkinsons' assignment of error states:
THE TRIAL COURT ERRED AS A MATTER OF LAW BY GRANTING SUMMARY JUDGMENT TO PLAINTIFFS-APPELLEES.
{¶14} An appellate court reviews a summary judgment ruling de novo. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. Thus, we shall apply the same test as the trial court in determining whether summary judgment was proper.
{¶15} A court may grant summary judgment only when (1) no genuine issue of material fact exists; (2) the moving party is entitled to judgment as a matter of law; and (3) the evidence can only produce a finding that is contrary to the non-moving party. Mercer v. Halmbacher, 9th Dist. Summit No. 27799, 2015-Ohio-4167, ¶ 8; Civ.R. 56(C). The initial burden is on the party moving for summary judgment to demonstrate the absence of a genuine issue of material fact as to the essential elements of the case with evidence of the type listed in Civ.R. 56(C). Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). A "material fact" depends on the substantive law of the claim being litigated. Hoyt, Inc. v. Gordon & Assoc., Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th Dist.1995), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
{¶16} If the moving party meets its burden, the burden shifts to the non-moving party to set forth specific facts to show that there is a genuine issue of material fact. Id.; Civ.R. 56(E). "Trial courts should award summary judgment with caution, being careful to resolve doubts and construe evidence in favor of the nonmoving party." Welco Industries, Inc. v. Applied Cos., 67 Ohio St.3d 344, 346, 617 N.E.2d 1129 (1993).
{¶17} The Atkinsons first argue that the service of a notice of intent to abandon by the clerk of courts as part of a complaint does not comply with the notice requirements of R.C. 5301.56(E)(1). They rely on this court's prior holding that "[t]he inclusion of the notice of abandonment among the complaint and exhibits does not satisfy the notice requirements of R.C. 5301.56." Miller v. Mellott, 7th Dist. Monroe No. 18 MO 0004, 2019-Ohio-504, ¶ 33, decision clarified on reconsideration sub nom. Miller v. Mellot, 7th Dist. Monroe No. 18 MO 0004, 2019-Ohio-4084, ¶ 33, and reconsideration denied, 7th Dist. Monroe No. 18 MO 0004, 2020-Ohio-237, ¶ 33, and appeal allowed, 157 Ohio St.3d 1562, 2020-Ohio-313, 138 N.E.3d 1163, reconsideration denied, 158 Ohio St.3d 1468, 2020-Ohio-1393, 142 N.E.3d 694. The Atkinsons assert that under these circumstances, the Hartlines have never served them with the Notice of Abandonment and, therefore, failed to abandon the Atkinson Interest under the DMA.
{¶18} In response, the Hartlines first set out a detailed argument why we should affirm the trial court's judgment based on the MTA. They urge us to consider this argument despite the fact that the trial court found their MTA claim moot in light of its ruling that the Atkinson Interest was abandoned and vested in the Hartlines pursuant to the DMA.
{¶19} This court has repeatedly held that although we apply a de novo review to a trial court's summary judgment ruling, we will not rule upon issues raised in summary judgment motions but not considered by the trial court. Conny Farms, Ltd. v. Ball Resources, Inc., 7th Dist. No. Columbiana 09 CO 36, 2011-Ohio-5472, ¶ 15; Tree of Life Church v. Agnew, 7th Dist. Belmont No. 12 BE 42, 2014-Ohio-878, ¶ 27; Fullum v. Columbiana Cty. Coroner, 7th Dist. Columbiana No. 12 CO 51, 2014-Ohio-5512, 25 N.E.3d 463, ¶ 45.
{¶20} Thus, we will not examine the Hartlines' MTA argument because the trial court explicitly found this claim moot and did not rule on it. Instead, we will consider the Hartlines' argument regarding the ruling the trial court rendered.
{¶21} As to their Notice of Abandonment, the Hartlines contend they properly served it as part of the complaint by certified mail, return receipt requested, on many of the Atkinsons on March 6 and 7, 2017. Due to the number of people involved and the numerous states that the Notice was mailed to, the Notices...
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