Lucas v. Whyte

Citation167 N.E.3d 40
Decision Date22 January 2021
Docket NumberNo. 19 MO 0022,19 MO 0022
Parties Sandra K. LUCAS, Plaintiff-Appellee, v. Marilyn Miller WHYTE et al., Defendants-Appellants.
CourtUnited States Court of Appeals (Ohio)

167 N.E.3d 40

Sandra K. LUCAS, Plaintiff-Appellee,
v.
Marilyn Miller WHYTE et al., Defendants-Appellants.

No. 19 MO 0022

Court of Appeals of Ohio, Seventh District, Monroe County.

Dated: January 22, 2021


OPINION AND JUDGMENT ENTRY

DONOFRIO, J.

{¶1} Defendants-appellants, George L. Miller, Marilyn Miller Whyte, George Trigg, John D. Miller, Ruth Campbell, Donald Miller, and David Easter, appeal from a Monroe County Common Pleas Court judgment denying their motion for summary judgment and granting the motion for summary judgment in favor of plaintiff-appellee, Sandra Lucas.

{¶2} In 1914, John D. Miller and Sarah Emma Miller owned a 25 acre tract of land situated in Sunsbury Township, Ohio (the property). On August 14, 1914, they conveyed the property by warranty deed to John McCoy (the Miller deed). In the Miller deed, John and Sarah reserved one-half of all the oil and gas and all of the coal underlying the property (the Miller reservation).

{¶3} On March 27, 1940, John died intestate. The Belmont Count Probate Court handled the probate of his estate. On August 15, 1940, the Belmont County Probate Court sent the Monroe County Recorder a certificate of transfer of John's real estate. This certificate indicated that all real estate held by John, including his interest in the Miller reservation, was transferred to the following people: 1/3 to Sarah and 2/15 each to William Miller, George W. Miller, Nancy Ruth Trigg, John M. Miller, and Donald Miller.

{¶4} Appellants are the current heirs to John and Sara, William Miller, George W. Miller, Nancy Ruth Trigg, John M. Miller, and/or Donald Miller.1 They claim an ownership interest in the Miller reservation.

{¶5} Appellee acquired sole possession to the surface of the property through

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three separate transactions. The first transaction was by a quit-claim dated August 4, 1966 and recorded on August 12, 1966, where W.M. and Mary Stephens conveyed to appellee and her husband, William Lucas, the surface of the property. The second transaction was by a warranty deed dated November 6, 2009, where appellee and William Lucas gave each other joint survivorship rights to the property. The third was by an affidavit of transfer dated April 19, 2010, where appellee averred that she was the sole owner of the surface of the property due to William Lucas’ death earlier that year.

{¶6} On October 3, 2013, appellee published a notice of intent to declare the Miller reservation abandoned. On November 7, 2013, appellee filed an affidavit of abandonment of the Miller reservation. On December 16, 2013, appellee filed a notice of abandonment of the Miller reservation.

{¶7} On October 12, 2018, appellee filed her complaint seeking to quiet title to the property of any outstanding oil and gas interests. Appellee's complaint alleged that appellants’ interest in the Miller reservation was both extinguished under Ohio's Marketable Title Act (MTA) and abandoned under Ohio's Dormant Mineral Act (DMA).

{¶8} Appellee served notice of the complaint on all interest holders by publication except for appellant Marilyn Miller Whyte. Appellee served her notice by certified mail.

{¶9} Appellants filed an answer and affirmative defenses. Among their affirmative defenses, appellants asserted that the MTA conflicted with the DMA and the DMA was the sole method to terminating oil and gas interests, appellee failed to exercise reasonable diligence in serving appellants with the notice of abandonment pursuant to the DMA, and appellee's claims were "barred by the muniments in the chain of title."

{¶10} Both parties filed motions for summary judgment.

{¶11} Appellants’ motion argued that appellee's DMA claim failed as a matter of law because appellee did not attempt to serve appellants with the notice of abandonment by certified mail and only served it on appellants by publication. As for appellee's MTA claim, appellants first argued that the DMA directly conflicts with the MTA and the DMA, as the specific statute, controlled the outcome of this action. Alternatively, they argued that the MTA did not extinguish their interest in the Miller reservation because their interest in the Miller reservation was subject to five title transactions and appellee did not have a valid root of title instrument.

{¶12} Along with their motion for summary judgment, appellants submitted two affidavits. The first is the affidavit of Kyle Bickford, appellants’ attorney. Bickford's affidavit contained numerous exhibits that were incorporated into appellants’ motion for summary judgment. The second affidavit was from appellant Ruth Campbell.

{¶13} Appellee's summary judgment motion argued that this court has consistently held that the MTA and the DMA both apply to oil and gas interests. With regard to her MTA claim, appellee argued that her root of title was her August 4, 1966 quit-claim deed and that deed only contained a general reference to the Miller reservation without any specific identification of a recorded title transaction. She also argued that between August 4, 1966 and April 19, 2010, the Miller reservation was not subject to any MTA exceptions. With regard to her DMA claim, appellee argued that for the 20 years prior to her initiating the abandonment procedure, the Miller reservation was not subject to a title transaction and no savings event occurred

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to prevent it from being declared abandoned.

{¶14} Along with her motion for summary judgment, appellee attached her responses to appellants’ discovery requests. Relevant to this appeal, appellants’ seventh interrogatory asked appellee to describe the efforts she used to locate, identify, and/or serve John D. Miller, Sarah Emma Miller, William Miller, George Miller, Nancy Ruth Trigg, John M. Miller, Donald Miller, or their heirs or assigns with the notice of abandonment by U.S. certified mail. Appellee responded, in relevant part:

[T]itle was run and an abstract related to the same was produced. Additionally, Kevin Presley and Shirley Neiswong researched the heirs via running the heirs’ names on the Monroe County Auditor, Recorder, Clerk of Courts, and Probate records, as well as utilizing the funeral home records and other records in possession of the Monroe County Historical Society and Genealogical Society.

(Appellee's Motion for Summary Judgment Ex. 1.)

{¶15} On September 24, 2019, the trial court denied appellants’ motion for summary judgment and granted appellee's motion for summary judgment. The trial court held that appellants’ interest in the Miller reservation was extinguished under the MTA because the reference to the Miller reservation in appellee's root of title was general and did not contain any specific identification of a recorded title transaction. The trial court also held that appellants’ interest in the Miller reservation was abandoned under the DMA because no savings event had occurred, the Miller reservation was not subject to a title transaction between October 3, 1993 and November 22, 2013, and appellants did not file a claim to preserve their interests in the Miller reservation after appellee filed her notice of abandonment.

{¶16} Appellants timely filed their notice of appeal on October 21, 2019. They now raise two assignments of error.

{¶17} Both assignments of error challenge the trial court's summary judgment ruling. Thus, we shall apply the same standard of review to both assignments of error.

{¶18} 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.

{¶19} 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., 2015-Ohio-4167, 44 N.E.3d 1011, ¶ 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).

{¶20} 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

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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).

{¶21} Because appellants’ second assignment of error is dispositive, we will address it first. Appellants’ second assignment of error states:

THE TRIAL COURT ERRED IN DETERMINING THE SEVERED
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