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The Thomas L. Stevens and Thelma T. Stevens Revocable Living Trust v. Kelly

Court of Appeals of Ohio, Seventh District, Carroll

March 29, 2017

THE THOMAS L. STEVENS AND THELMA T. STEVENS REVOCABLE LIVING TRUST DATED SEPTEMBER 3, 2013, PLAINTIFF-APPELLEE,
v.
RENEE R. KELLY, et al., DEFENDANTS-APPELLANTS.

         Civil Appeal from the Court of Common Pleas of Carroll County, Ohio Case No. 2013 CVH 27491

          For Plaintiff-Appellee: No Brief Filed.

          For Defendants-Appellants: Atty. E. Lee Wagoner

          JUDGES: Hon. Carol Ann Robb, Hon. Gene Donofrio, Hon. Cheryl L. Waite

          OPINION

          ROBB, P.J.

         {¶1} Defendant-Appellant Renee Kelly appeals the decision of the Carroll County Common Pleas Court granting summary judgment for Plaintiff-Appellee Thomas L. & Thelma T. Stevens Revocable Living Trust. This case involves the Ohio Dormant Mineral Act (ODMA) and whether the oil, gas and other mineral rights, excepting coal, underlying Appellee's property were abandoned and deemed vested in the surface owner, Appellee.

         {¶2} The trial court determined the 1989 version of the ODMA was applicable, and found the oil, gas and other mineral rights were abandoned and vested in the surface estate. Appellant disagrees with that holding and argues the 2006 version of the ODMA is applicable since Appellee's claim to quiet title was asserted after the 2006 version became effective. Based on the Ohio Supreme Court's decision in Corban v. Chesapeake Exploration, LLC, __Ohio St.3d__, 2016-Ohio-5796, __N.E.3d__, Appellant's argument has merit. The trial court's grant of summary judgment for Appellee is reversed and remanded for further proceedings.

         Statement of the Facts and Case

         {¶3} Appellee owns 120 acres of real property in Carroll County, Ohio. In 1929, W.H. Hildreth sold approximately 158 acres in Carroll County, Ohio, to Perry Q. and Goldie Maloney. In that deed, W.H. Hildreth reserved 1/2 of all coal, oil, gas and other mineral rights for approximately 133 of the 158 acres. The coal rights were later sold. Appellee eventually purchased 120 acres of the 158 acres. W.H. Hildreth's reservation as to the oil, gas, and other mineral rights, excluding the previously sold coal interest, was applicable to the 120 acres Appellee acquired.

         {¶4} In 2013, Appellee filed a declaratory judgment/quiet title complaint. Appellee contended the reserved oil, gas and other mineral rights were never transferred or conveyed to any heir or assignee of W.H. Hildreth. Likewise, it asserted for 83 years neither W.H. Hildreth nor his heirs or assigns utilized the oil, gas or other mineral rights under the property. As such, it asked the trial court to apply the 1989 version of the ODMA and find there were no savings events within the preceding 20 years of the effective date of the 1989 ODMA. In finding as such, it asked the court to hold the oil, gas, and other mineral rights reserved were abandoned and vested in the surface on March 22, 1992. 4/1/13 Complaint.

         {¶5} In the complaint, Appellee acknowledged Appellant's mother, acting through her power of attorney, filed a Claim to Preserve on July 27, 2012. This claim stated, "Anita M. Hildreth, as well as the other heirs of William Harrison Hildreth, do not intend to abandon, but do intend to preserve, their rights in the mineral interests described above." Anita's Claim to Preserve. The claim described W.H. Hildreth's reservation to the oil, gas and other mineral rights, excluding coal, in the 133 acres sold in 1929. Anita's Claim to Preserve. Anita asserted W.H. Hildreth had six children and she is the holder of 1/6 of the 1/2 interest. Anita's Claim to Preserve. According to Appellee, the Claim to Preserve did not save the oil, gas and other mineral rights because the interests were abandoned and automatically deemed vested on March 22, 1992. 4/1/2013 Complaint.

         {¶6} Following the filing of the complaint, Appellee did cause notices of intent to declare abandonment to be published in the local newspaper in Carroll County. 5/23/13 Invoice and Affidavit of Publication.

         {¶7} Appellant filed an answer and counterclaim. In the answer, Appellant explained W.H. Hildreth died in 1944; his wife received 1/3 interest in his estate and each of six children received 1/9 interest. Anita was married to Jesse Hildreth, W.H. Hildreth's son. Jesse died in 1990 and Anita was his sole beneficiary. Anita died in August 2012; Appellant was her sole beneficiary. In the counterclaim, Appellant sought a declaration that the Hildreth heirs retain a 1/2 interest in the oil, gas, and other minerals, excluding coal, in the subject parcel, and Appellant obtains a 1/6 interest in the 1/2 interest. 6/12/13 First Amended Answer and Counterclaim.

         {¶8} Appellee filed an answer to the counterclaim and moved for default judgment against the remaining unknown heirs or assigns of W.H. Hildreth. 7/3/13 Reply to Amended Answer and Counterclaim; 8/8/13 Motion for Default Judgment. The trial court granted a partial default ...


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