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Quick v. Jenkins

Court of Appeals of Ohio, Seventh District

September 30, 2013

JANICE LEE QUICK, et al., PLAINTIFFS-APPELLEES,
v.
L.D. JENKINS, DEFENDANT-APPELLANT.

Civil Appeal from Common Pleas Court, Case No. 12CV251.

For Plaintiffs-Appellees: Attorney David Tobin Attorney Charles Payne

For Defendant-Appellant: L.D. Jenkins, Pro se

Hon. Joseph J. Vukovich Hon. Gene Donofrio Hon. Mary DeGenaro J.

OPINION

VUKOVICH, J.

(¶1} Defendant-appellant L.D. Jenkins appeals the decision of the Columbiana County Common Pleas Court denying his motion to vacate a default judgment that was entered against him. The basis of the motion to vacate was the failure to serve appellant. For the reasons expressed below, given our standard of review, we find that the trial court did not abuse its discretion in failing to vacate the default judgment. Therefore, the trial court's decision is hereby affirmed.

Statement of Case

(¶2} Plaintiffs-appellees Janice Lee Quick, JoAnne Ciaverella and Maria McNicol own land located in Columbiana County, Ohio. This property had been in their family since 1931. Unknown to appellees, the mineral interests were severed from the property prior to their family acquiring the property. Allegedly, it was not until after they signed an oil and gas lease with Chesapeake Appalachia LLC, that they discovered the cloud on their mineral interest title.

(¶3} Appellees then attempted to have the mineral interests reattached to the surface under the Ohio Dormant Mineral Act, R.C. 5301.56. Appellees notified the holders of the mineral interests of this intent by publishing a notice in a local newspaper. This notice allegedly complied with R.C. 5301.56(E). After publication, the holders had 60 days to respond pursuant to R.C. 5301.56(H).

(¶4} On July 18, 2011, within the 60 day time period, William Parr filed an affidavit with the Columbiana County Recorder's Office in an attempt to preserve the mineral rights for the alleged listed holders in that affidavit. In addition to others, he listed the parties as Willow Point Corporation, Remora LLC and appellant. The affidavit indicated that all three of these parties were located at 1200 Belford Avenue, Oklahoma City, Oklahoma.

(¶5} Approximately nine months later, appellees filed an action in Columbiana County Common Pleas Court seeking to quiet title to the mineral interests. 04/17/12 Complaint. Appellees contended that the Parr affidavit is void and does not preserve any mineral interests. If that argument was accepted, then the mineral interests would reattach to the surface and appellees would be determined to be the owners of interests. All parties named in the Parr affidavit were listed as defendants in the quiet title action, which included appellant, Willow Point Corporation, and Remora LLC. The address identified in that affidavit is where appellees attempted to serve those defendants. Thus, summons to appellant was sent by certified mail to the 1200 Belford Avenue address.

(¶6} The summons sent to appellant was accepted and signed for by Penney LaZaroff. However, appellant failed to appear or answer. Thus, appellees moved for default judgment, which the trial court granted. 06/07/12 Motion for Default Judgment; 06/12/12 J.E.

(¶7} Roughly four months later, appellant filed a motion to vacate default judgment. 10/09/12 Motion. The basis of the motion was that he was not properly served. Attached to the motion were three affidavits - one from appellant, one from Parr on behalf of Willow Point Corporation, and one from LaZaroff. All three affidavits indicate that neither LaZaroff nor Willow Point Corporation have been authorized to accept service of process on appellant's behalf. They also indicate that appellant does not reside or work at 1200 Belford Avenue and that appellant has no ownership or affiliation, including employment, with Willow Point Corporation.

(¶8} Appellees filed a motion in opposition to the motion to vacate. 10/29/12 Motion. The basis of the motion was that appellant was served at the address listed in the Parr affidavit and that appellant had been served at this address in other cases that are pending in Columbiana and Belmont Counties. Appellant filed a reply to the opposition motion. 11/15/12 Motion. After ...


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