Miller v. Mellott

• Decision Date: 06 February 2019
• Docket Number: No. 18 MO 0004,18 MO 0004
• Citation: 130 N.E.3d 1021,2019 Ohio 504
• Parties: Allen B. MILLER, et al., Plaintiffs-Appellants, v. Elbert MELLOTT, et al., Defendants-Appellees.
• Court: Ohio Court of Appeals

130 N.E.3d 1021
2019 Ohio 504

Allen B. MILLER, et al., Plaintiffs-Appellants,
v.
Elbert MELLOTT, et al., Defendants-Appellees.

No. 18 MO 0004

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

Dated: February 6, 2019

Attys. Kristopher Justice and Daniel Corcoran, 424 Second Street, Marietta, Ohio 45750, for Appellants and

Attys. Scott Eickelberger, David Tarbert and Ryan Linn, 50 North Fourth Street, P.O. Box 1030, Zanesville, Ohio 43702, for Appellees.

BEFORE: Kathleen Bartlett, Cheryl L. Waite, Carol Ann Robb, Judges.

OPINION AND JUDGMENT ENTRY

Bartlett, J.

{¶1} Plaintiffs-Appellants, Allen B. Miller, Matilda J. Miller, Craig M. Miller, Tina E. Miller, Brenda D. Thomas, and Kevin M. Thomas (hereinafter collectively "Appellants"), appeal the February 21, 2018 decision of the Monroe County Court of Common Pleas granting summary judgment in favor of Defendants-Appellees, and denying Appellants' motion for summary judgment. For the following reasons, Appellants' appeal does not have merit. The judgment of the trial court is affirmed.

Facts & Procedural History

{¶2} Appellants are the undisputed surface owners of approximately 69.38 acres located in Adams Township, Monroe County, Ohio by virtue of the Warranty Deed dated September 30, 2010, and recorded on October 4, 2010 at Volume 195, Page 389 of the Monroe County Official Records.

{¶3} Appellees are the owners of record of all of the oil and gas in and underlying the 69.38 acre parcel by virtue of the Warranty Deed dated and recorded May 8, 1947 at Volume 120, Page 223 of the Monroe County Deed Records from Elbert Mellott and Anna Mellott, husband and wife, to Charles W. Knowlton and Ella Murl Knowlton (the "Mellott Deed"). Pursuant to that Deed, Elbert Mellott and Anna Mellott conveyed the surface of the premises but reserved all of the oil and gas in and underlying the premises (the "Mellott Mineral Interest"). The reservation stated:

130 N.E.3d 1024

Except coal as formerly sold by Isaac Ward, Dec'd.

Also except all the oil and gas in and under said real estate. The said grantors herein reserve the right to lease said premises for oil and gas purposes, and are to receive all bonuses and rentals deriving from the leasing of said premises for oil or gas purposes. If a producing gas well is drilled on this real estate, grantees are to have gas for household purposes free of charge. Also the grantees shall be paid all damages caused by the operation of any or all oil or gas wells.

(Complaint, Exhibit B).

{¶4} Appellants state that Elbert Mellott died January 22, 1963 and Anna Mellott died November 23, 1982, and that no mention of the interest was in either estate and that no further transfers or recorded transactions occurred of the oil and gas interest. (Certified Copies of Records, Affidavit of Abandonment recorded on January 10, 2012, Volume 212, Page 630 of the Monroe County records, at ¶ 2).

{¶5} Appellants identify their "root of title" deed as the warranty deed from William M. Truex and Helen L. Truex, husband and wife, to Albert Hartline and Nadine Hartline, husband and wife, dated April 18, 1959, and recorded May 4, 1959 in the deed records of Monroe County, Ohio at Volume 137, Page 232. (Plaintiff's MSJ at 5).

{¶6} The purported root of title deed contains the following:

Except coal as formerly sold by Isaac Ward, Dec'd; and also except all the oil and gas in and under said real estate.

Last deed reference:

{¶7} No other deeds were provided to the trial court for the time period between the Mellott Deed in 1947 and the purported root of title deed ("Truex Deed") in 1959.

{¶8} The subsequent deeds following the purported root of title, including a 1978 Deed between Albert Hartline and Nadine Hartline, a 1979 deed from Albert Hartline and Nadine Hartline to A. Aaron Miller and Charlene Miller, and the 2010 deed from A. Aaron Miller and Charlene Miller to M. Craig Miller, Allen B. Miller, and Brenda D. Thomas, all contain the following reference:

EXCEPT coal as formerly sold by Isaac Ward, deceased; and ALSO EXCEPT all the oil and gas in and under said real estate as reserved by the prior grantors.

(Plaintiff's MSJ at 11).

{¶9} On November 17, 2011, Appellants published a notice of abandonment, followed by an affidavit of abandonment (January 10, 2012). No certified mail was issued with regard to the notice of abandonment.

{¶10} On January 27, 2012, Appellants caused the Monroe County Recorder to memorialize on the record of the Mellott Deed that the Mellott Mineral Interest had been abandoned.

{¶11} On February 3, 2017, Appellants filed a Complaint for Declaratory Judgment and to Quiet Title and Notice of Abandonment. Appellants included a Notice of Abandonment within their Complaint, following the signature line for the prayer for relief in the Complaint. It was not attached as an exhibit or a separate document. Appellants stated that they would file the Affidavit of Abandonment, and in the absence of any filings by the mineral interest holders, would seek the declaration of abandonment of the interest and vesting of the interest in Appellants.

{¶12} In addition to claims of abandonment pursuant to the Dormant Mineral Act (DMA) through the affidavit of abandonment

130 N.E.3d 1025

filed in 2012, and the notice of abandonment filed within the Complaint in 2017, Appellants alleged a claim pursuant to the Marketable Title Act (MTA) alleging that the root of title deed from William M. Truex and Helen L. Truex to Albert Hartline and Nadine Hartline recorded on May 4, 1959 at Volume 137, Page 232 of the Deed Records of Monroe County, did not specifically refer to or identify the Mellott Mineral Interest, and since Appellees failed to record any preserving notices, that the Mellott Mineral Interest was extinguished.

{¶13} Appellants lastly alleged claims for adverse possession, and to quiet title.

{¶14} On March 27, 2017, during the pendency of the underlying action, Appellants recorded an Affidavit of Abandonment at Volume 355, Page 186 at Monroe County deed records, stating that the "notice of abandonment was attached to the complaint filed in the Monroe County Court of Common Pleas action styled Allen B. Miller, et al. v. Elbert Mellott, aka Elbert H. Mellott, et al. , Case No. 2017-022 ("Civil Action")." (Notice of Filing Certified Copies, 2017 Affidavit of Abandonment at ¶ 7). Appellants further stated that certain parties were served by certified mail,¹ return receipt requested, on February 7, 2017, February 9, 2017, February 13, 2017, and February 15, 2017. Those that were not served by certified mail were served by publication on February 23, 2017. (Id. ). Appellants also stated "[a]fter due diligence, it is believed that some of the persons listed above are deceased and the last known address of those who have not already been served by certified mail, return receipt requested, could not be ascertained at the time the notice was published, thereby making service by certified mail, return receipt requested, impossible to complete." (Id. )² .

{¶15} On November 30, 2017, the parties filed competing Motions for Summary Judgment. Appellees also filed a Motion to Strike, requesting an order directing the Monroe County, Ohio Recorder to strike from the record the Affidavit of Abandonment and Notice of Failure to File recorded by Appellants.

{¶16} On December 15, 2017, the parties each filed memoranda opposing the other's motion for summary judgment.

{¶17} On December 28, 2017, the parties filed reply memoranda in further support of their motions for summary judgment.

{¶18} On February 21, 2018, following non-oral hearing on cross summary judgment motions, the trial court issued a Judgment Entry finding: that the claims under the 2006 DMA were void for the failure to attempt service by certified mail; that the DMA controlled with regard to severed, fee mineral interests rather than the MTA; that the complaint was not equivalent to a "Notice of Intent to Declare Abandon" and was not the procedure required in R.C. 5301.56 ; and that the claims for adverse possession and quiet title failed, granting summary judgment in favor of Defendants-Appellees, dismissing Plaintiffs-Appellants' Complaint and striking and voiding the Affidavits of Abandonment previously filed by Plaintiffs-Appellants

130 N.E.3d 1026

with the Monroe County Recorder. (2/21/18 JE).

{¶19} Appellants subsequently filed the instant timely appeal.

Standard of Review

{¶20} An appellate court reviews the trial court's entry of summary judgment on a de novo basis, following the same standard as employed by the trial court. Civ. R. 56(C). A trial 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. 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...