Court of Appeals of Ohio, Seventh District, Carroll
TERRI L. PAUL, PLAINTIFF-APPELLANT,
HARRIETT LUCINDA HANNON, ET AL., DEFENDANTS-APPELLEES.
Appeal from Court of Common Pleas of Carroll County, Ohio
Case No. 2013CVH27582.
Plaintiff-Appellant Attorney David E. Butz Attorney Matthew
Defendants-Appellees Attorney Karen J. Greenwell Attorney G.
Brian Wells Attorney Eric C. Johnson
JUDGES: Hon. Gene Donofrio Hon. Cheryl L. Waite Hon. Mary
Plaintiff-appellant, Terri Paul, appeals from a Carroll
County Common Pleas Court judgment denying her motion for
partial summary judgment and granting the motion for summary
judgment filed by defendants-appellees, Harriet Hannon and
the Estate of Robert Douglas Hannon.
This case involves the Ohio Dormant Mineral Act (ODMA).
Appellant is the owner of a 70-acre tract of land in Perry
Township (the Property) and the owner of a one-half interest
in the oil and gas interest below the Property. Appellees are
the owners of the other one-half interest in the oil and gas
below the Property. Appellant sought to reunite
appellees' oil and gas interest with her interest
pursuant to the ODMA. Appellees sought to preserve their
one-half interest pursuant of the ODMA.
On October 25, 1944, Raymond and Nellie Davis sold to R.H.
Hannon a one-half interest in all oil and gas and other
minerals except coal underlying the Property. The deed is
referred to as the "Davis Deed."
On October 30, 1944, Russell and Florence Cain sold to R.H.
Hannon a one-half interest in all the oil and gas under a
60-acre tract of land in Perry Township, Carroll County. This
is referred to as the "Cain Deed."
On December 16, 1944, W. McClelland and Wilma Patterson
transferred to R.H. Hannon a one-half interest in all the oil
and gas under a 147-acre tract of land which is referred to
as the "Patterson Deed."
On July 31, 1989, the above three interests, those
represented by the Davis, Cain, and Patterson Deeds, and any
other mineral interests in Carroll County, Ohio owned by R.H.
Hannon, were conveyed to R.H. Hannon's children Lucinda
Hannon, Doug Hannon, and Hal Hannon, in equal shares by the
Estate of R.H. Hannon. This transfer is referred to as the
"Children's Deed." In addition to other things,
the Children's Deed specifically referenced the Davis,
Cain, and Patterson Deeds stating:
Lands situated in Section 30, Township 12, Range 5, Perry
Township, Carroll County, Ohio as more particularly described
in an instrument from Russell Cain and Florence Cain dated
October 30, 1944 and recorded in Volume 28, Page 33, Volume
28, Page 32 and Volume 28, Page 39, Lease Records, Carroll
Hal Hannon later sold all of his interest in the
Children's Deed to Lucinda Hannon. That transfer, dated
August 14, 1989, is referred to as "Hal's
Deed." Thus, at this point, Lucinda owned a two-thirds
interest in the minerals conveyed by the Children's Deed
and Doug Hanon (now his estate) owned one third.
In 1989, appellant and her spouse acquired from Thelma
Borland and Nellie Davis the surface and other interest in
what is described above as the Davis Deed with the specific
exception of the one-half interest in oil and gas and other
minerals deeded to R.H. Hannon. This transfer from Borland
and Davis to appellant and her spouse is called the
On May 27, 2010, appellant's spouse transferred his
interest in the Paul Deed to appellant by quitclaim deed.
This deed is referred to as the "Quitclaim Deed."
As a result, appellant now owns the surface lands and
one-half interest in the minerals below the land and
appellees own the other one-half interest in the minerals
below the surface land in the Property.
In 2011, appellant leased her oil and gas interest in the
Property to Chesapeake Exploration, LLC. A memorandum of the
lease was recorded. Subsequently, appellant learned that
Chesapeake would pay her only one-half of the proceeds
because it determined that one-half of the oil and gas rights
belonged to appellees. In April 2012, appellant took steps to
try to obtain appellees' one-half interest by initiating
the steps set forth in the ODMA.
On April 20, 2012, appellant mailed to both appellees a
document titled Notice of Intent to Declare Mineral Interest
Abandoned Pursuant to R.C. 5301.56.
On May 25, 2012, both appellees filed a document titled
Affidavit to Preserve Mineral Interest which stated that
appellees wished to preserve their oil and gas interests.
On June 14, 2012, appellant recorded two documents both
titled Affidavit of Fact Relating to Title to Real Estate,
which state that the mineral interests previously owned by
appellees have been abandoned.
On July 24, 2012, appellant recorded two documents both
titled Affidavit of Facts asking the County Recorder to
marginally note the abandonment of the mineral interests of
appellees pursuant to the previously filed Affidavits of
On November 7, 2012, December 7, 2012, and December 19, 2012,
appellees filed Memorandums of Oil and Gas Lease reflecting
the leasing of their oil and gas interests to Chesapeake
On July 11, 2013 appellant filed a complaint against
appellees and others seeking relief in the forms of
declaratory judgment, quiet title, injunction, slander of
title, negligence/negligence per se, and unjust enrichment.
Appellees filed an answer, counterclaim, and third-party
complaint. In their counterclaim, appellees sought
declaratory judgment, quiet title, and slander of title. The
third-party claim was bifurcated and is not an issue here.
Appellant filed a motion for partial summary judgment on her
complaint for declaratory relief, quiet title, injunctive
relief, and slander of title. Appellant also sought summary
judgment on all claims asserted in appellees'
counterclaim. Appellees also filed a motion for summary
judgment. Appellees sought summary judgment on their
counterclaim and on each of appellant's claims against
The trial court denied appellant's motion and granted
appellees' motion. The court quieted title in favor of
appellees with regard to the one-half interest in the oil and
gas underlying the Property. The court also awarded appellees
nominal damages of $1.00 on their counterclaim for slander of
Appellant filed a timely notice of appeal. On appeal,
appellant does not challenge the trial court's award of
summary judgment to appellees' regarding appellant's
claims for unjust enrichment, conversion, or constructive
An appellate court reviews the granting of summary judgment
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.
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. No. 27799,
2015-Ohio-4167, ¶ 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). 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
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, 1993-Ohio-191, 617 N.E.2d 1129.
Appellant's first assignment of error states:
THE TRIAL COURT ERRONEOUSLY CLASSIFIED R.C. 5305.56 AS A
FORFEITURE STATUTE AND AS A RESULT, APPLIED AN IMPROPER
STANDARD OF REVIEW FOR APPELLANTS ABANDONMENT EFFORTS.
Appellant argues that the ODMA is properly characterized as
an "abandonment statute." She asserts that the
trial court's failure to properly define the ODMA tainted
its analysis and its decision must be reversed. Appellant
argues that the ODMA should be interpreted in favor of the
owner of the surface land as their property rights are
affected by any unused or forgotten interests.
In addressing this issue, the trial court observed that at
common law, severed ownership of mineral interests could not
be lost by mere nonuse, that a vested fee interest in real
property cannot be abandoned, and that the law abhors a
The trial court explained that appellees' filing of a
notice of preservation and a defense in this action
demonstrates that they did not intend to abandon their
mineral interest. Thus, the only way appellees could legally
be divested of their interest was by way of a statutory
forfeiture. Accordingly, the trial court characterized the
ODMA as a forfeiture statute. The trial court was of the
opinion that whether or not the ODMA is viewed as
"abandonment" or "forfeiture, " it is
contrary to common law and should be construed "to
insure that [a] person being deprived of his or her property
receives all of the protections the General Assembly provided
in the statute." Further, the trial court concluded, it
is appropriate to require that appellant, as the one seeking
to acquire appellees' property rights, comply with all
aspects of the requirements of the ODMA. Lastly, the trial
court opined that R.C. 5301.55's mandate that R.C.
5301.56 "shall be liberally construed to effect the
legislative purpose of simplifying and facilitating land
title transactions by allowing persons to rely on a record
chain of title * * * " does not mean that the statute
should be liberally construed to make it easier for surface
owners to acquire the minerals of others in derogation of
countervailing common law principles and without fully
satisfying the requirements imposed on surface owners by R.C.
The Ohio Supreme Court recently analyzed the ODMA in
Corban v. Chesapeake Exploration, LLC, __ Ohio St.3d
__ 2016-Ohio-5796, __ N.E.3d __. In Corban,
the Ohio Supreme Court answered two certified questions
regarding the 1989 and 2006 versions of the ODMA. In
answering those questions, the Ohio Supreme Court explained
that in enacting the 1989 version, "the legislature did
not intend title to dormant mineral ...