Tribett v. Shepherd

• Decision Date: 29 September 2014
• Docket Number: No. 13 BE 22.,13 BE 22.
• Citation: 20 N.E.3d 365
• Parties: Vernon TRIBETT, et al., Plaintiffs–Appellees/Cross–Appellants, v. Barbara SHEPHERD, et al., Defendants–Appellants/Cross–Appellees.
• Court: Ohio Court of Appeals

20 N.E.3d 365

Vernon TRIBETT, et al., Plaintiffs–Appellees/Cross–Appellants

v.Barbara SHEPHERD, et al., Defendants–Appellants/Cross–Appellees.

No. 13 BE 22.

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

Sept. 29, 2014.

Richard Myser, Bridgeport, OH, for Plaintiffs–Appellees/Cross–Appellants.

Matthew Warnock, Daniel Gerken, Columbus, OH, for Defendants–Appellants/Cross–Appellees.

MARY DeGENARO, P.J., JOSEPH J. VUKOVICH, J., and GENE DONOFRIO, J.

OPINION

VUKOVICH, J.

{¶ 1} Defendants-appellants Barbara Shepherd, Marion Shepherd, as executor of the Estate of Joseph Shepherd, David Shepherd, Scott Whitacre, Susan Spenser, Steve Whitacre, Samuel Whitacre, Ralph Earliwine, James Earliwine, Rhonda Earliwine, Donley Williams, Mary Taylor, Cathy Jo Yontz, Carol Talley, Karen Stubbs, Pamela Skelly, David Huisman, Debbie Allen, Mark Phillips, Brian Phillips, Liana Phillips Yoder, Sallie Shepherd, John Mauersberger, George Mauersberger, Gwen Lewis, Wayne Shepherd, Brent Moser, Barrett Moser and Kaye Anderson Hall (collectively referred to as Shepherds) appeal the decision of the Belmont County Common Pleas Court granting summary judgment in part for Vernon Tribett and Susan Tribett (Tribetts). The Tribetts have cross appealed. They are appealing from the decision of the Belmont County Common Pleas Court that granted the Shepherds motion for summary judgment in part.

{¶ 2} Multiple issues are raised in the appeal and cross appeal, most of which have recently decided in other decisions by this court. The issues that have not been decided are whether the 1989 version of Ohio Dormant Mineral Act (ODMA) is barred by the statute of limitations and whether the 1989 version of the ODMA is unconstitutional. We find that the 1989 version of the ODMA is not barred by the statute of limitations and that that version is constitutional. Based on those rulings, our prior decisions and the reasons expressed below, the judgment of the trial court is hereby affirmed.

Statement of the Facts and Case

{¶ 3} In 1959, Joseph Shepherd, John Shepherd and Keith Shepherd inherited a tract of land in Union Township, Belmont County, Ohio. Included in this tract of land is the 61 acres that are at issue in this appeal. In 1962, Joseph Shepherd, John Shepherd and Keith Shepherd sold the surface rights and coal interests they still had in roughly 137 acres to Seaway Coal. Those individuals, however, reserved all other mineral interests. Included in those 137 acres is the 61 acres at issue in this case. The reservation reads:

Excepting and reserving unto the said Grantors, their heirs and assigns, all oil and gas lying under and within the premises hereby conveyed, with the right to enter on said premises, prospect, explore and drill for, develop, produce, store and remove the same, with all machinery, structures, derricks, tanks, pipe lines, equipment, fixtures, machinery and other appliances and things necessary or convenient therefor, and the right to use so much of the surface as may be necessary for the purposes aforesaid. However, said Grantors agree not to interfere with the prosecution of the mining operations of said Grantee, in the drilling and exploring for said gas and oil.

1962 Deed.

{¶ 4} In 1986, Seaway Coal sold all of the interest in the land to Shell Mining Company. That 1986 deed contains the reservation of mineral interests to Joseph Shepherd, John Shepherd, and Keith Shepherd that was contained in the 1962 deed.

{¶ 5} In November 1992, Shelling Mining sold all interest in the land to R & F Coal by limited warranty deed. This 1992 deed also contains the 1962 reservation of mineral interests. R & F Coal eventually sold the surface. In 1996 and 2006, the Tribetts acquired a total of 61 acres from the original 137 acres that was sold by Joseph Shepherd, John Shepherd and Keith Shepherd to Seaway Coal.

{¶ 6} On September 29, 2011, the Tribetts published a notice of abandonment of mineral interest in the Times Leader, a local Belmont County newspaper. They did not attempt service. On October 28, 2011, the Shepherds filed an affidavit to preserve the mineral interests that they allegedly inherited from Joseph Shepherd, John Shepherd and Keith Shepherd. On April 16, 2012, the Tribetts filed an action for Quiet Title and Declaratory Judgment.

{¶ 7} At the outset, there were some joinder issues which are not at issue in this appeal and thus, will not be discussed to further extent. The case then proceeded to the merits. Each party filed their own sets of summary judgment motions and opposition motions.

{¶ 8} In their motion for summary judgment, the Tribetts argued that under both the 1989 and 2006 version of the ODMA, they were entitled to have the mineral interests deemed abandoned. They contended that there was no savings event that made the mineral interests not abandoned.

{¶ 9} The Shepherds, on the other hand, argued that the mineral interests were not abandoned. They contended that the 2006 version of the statute is applicable, not the 1989 version. Along this same vein, they argued that the 1989 version constitutes an unconstitutional taking because allegedly this statute indicates that unless a savings event occurs within the 20 year look-back period, the mineral interest is deemed abandoned and vested in the owner of the surface. Alternatively the Shepherds also argued that there were two savings events that occurred, the 1986 Shell Mining Deed and the 1992 R & F Coal Deed. Therefore, they also claimed that under either statute the minerals were not abandoned. Specifically as to the 2006 version of the ODMA, they claimed that the Tribetts did not comply with the notice provisions in the statute and thus the Tribetts could not prevail under that statute. They argued that the notice provision in the 2006 version required that they, as holders of the minerals, be served by certified mail of the attempt to have the minerals deemed abandoned. The Tribetts did not attempt certified mail, rather they did service through publication.

{¶ 10} In response to this motion, the Tribetts asserted that the 1989 version of the ODMA is not unconstitutional and that it is applicable. They also argued that neither the 1986 or 1992 deeds were savings events under the language of either statute. They contended that the Shepherds were not holders of the mineral interest and thus, they did not have to serve them by certified mail; they asserted publication was sufficient.

{¶ 11} Following the arguments, the trial court granted summary judgment in part for each party. The trial court specifically held that both versions of the ODMA were applicable. It found that the 1989 act was constitutional based on the United States Supreme Court's decision in Texaco Inc. v. Short, 454 U.S. 516, 102 S.Ct. 781, 70 L.Ed.2d 738 (1982). It found that the ODMA is part of the Ohio Marketable Title Act, but requires a higher standard for a savings event and that neither the 1986 nor 1992 deeds were savings events because the mineral interests were not subject of the title transaction.

{¶ 12} That said, it found that the Tribetts did not properly invoke the 2006 version because the Shepherds were holders and by statute they were required to be given notice of the owners intent to pursue abandonment. This notice was required to be done by certified mail. The Tribetts made no attempt at certified mail but rather went straight to publication notice, which is an alternative if certified mail cannot be completed. Therefore, the trial court found that the Tribetts could not rely on the 2006 version to pursue their abandonment claim.

{¶ 13} As to the 1989 version of the ODMA, it once again discussed the 1986 and 1992 deeds. It found that under the 1989 version, the look-back period is a 20 year fixed period. It explained that “there is a 20 year look-back period from March 22, 1989 during which the ‘Savings Event’ must have occurred plus a 3 year grace period to March 22, 1992. Thus, it looked from March 22, 1969 to March 22, 1992 and indicated that the only potential savings event would be the 1986 deed. However, it indicated that that deed was not an actual savings event because of its previous determination that the mineral interest was merely recited in the deed and was not the subject of the title transaction. Thus, the trial court concluded that the mineral interests vested in the surface owners on March 22, 1992. The court then quieted title in the mineral interests to the Tribetts. The grant of summary judgment in part for each party was appealed to this court.

Shepherds First and Second Assignments of Error

{¶ 14} “The trial court erred in granting summary judgment for Plaintiffs–Appellants.”

{¶ 15} “The trial court erred in not granting summary judgment in favor of Defendants–Appellants.”

{¶ 16} The appellate brief combines the two arguments. The essence of the Shepherd's position is that there are no factual disputes and as a matter of law summary judgment should have been granted for them, not for the Tribetts.

{¶ 17} In reviewing a summary judgment award we apply a de novo standard of review. Cole v. Am. Industries & Resources Corp., 128 Ohio App.3d 546, 552, 715 N.E.2d 1179 (7th Dist.1998). Thus, we use the same test the trial court did, Civ.R. 56(C). That rule provides that the trial court shall render summary judgment if no genuine issue of material fact exists and when construing the evidence most strongly in favor of the nonmoving party, reasonable minds can only conclude that the moving party is entitled to judgment as a matter of law. State ex rel. Parsons v. Fleming, 68 Ohio St.3d 509, 511, 628 N.E.2d 1377 (1994).

{¶ 18} This appeal involves the Ohio Dormant Mineral Act (ODMA). This act provides a mechanism for deeming mineral interests abandoned and having them reattached to the surface. Multiple issues are raised in this appeal concerning the trial court's application of the ODMA. Each ruling will be addressed in turn.

1. “Subject of” the Title Transaction

{¶ 19} The...