Court of Appeals of Ohio, Seventh District, Jefferson
MARK S. KROSS, et al. PLAINTIFFS-APPELLEES
JERRY RUFF, Executor of the Estate of JEAN YVONNE RUFF, Deceased, et al. DEFENDANTS-APPELLANTS
Appeal from the Court of Common Pleas of Jefferson County,
Ohio Case No. 12 CV 303
Plaintiffs-Appellees: Atty. Steven J. Shrock Atty. Clinton G.
Bailey Critchfield, Critchfield & Johnston, Ltd.
Defendants-Appellants: Atty. John Curtis Alberti John Curtis
Alberti Co., LPA
JUDGES: Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Carol
Appellants Jean Yvonne Ruff, Frederick Simpson, Lincoln
Simpson, Polly McJessy, Scott Harrah as Executor of the
Estate of James Harrah, and William Harrah (collectively
referred to as "Appellants") appeal a September 13,
2013 Jefferson County Common Pleas Court decision to grant
summary judgment in favor of Appellees Mark S. and Joe Kross
(collectively referred to as "Appellees").
Appellants argue that the trial court erroneously applied the
1989 Dormant Mineral Act ("DMA") because
Appellees' complaint was filed after the effective date
of the 2006 version of the Act. Pursuant to the 2006 DMA,
Appellants contend that they have preserved their mineral
interests by filing affidavits of preservation and through
the existence of a tax parcel. Pursuant to Corban v.
Chesapeake Exploration LLC, __ Ohio St.3d__,
2016-Ohio-5796__, N.E.3d __ and Dodd v. Croskey, 143
Ohio St.3d 293, 2015-Ohio-2362, 37 N.E.3d 147,
Appellants' arguments have merit and the judgment of the
trial court is reversed and remanded only for the purpose of
determining damages, if any.
and Procedural History
This appeal concerns the ownership of minerals beneath
approximately 219 acres of land located in Wayne Township,
Jefferson County. On May 26, 1924, Mary B. Harrah, Orville F.
Harrah, Pauline Harrah, Frank W. Harrah, Parthenia Harrah,
Charles W. Harrah, and Cornell Harrah conveyed the surface
rights of the property to Dan and Anna Rensi. The deed
included the following language: "Said grantors for
themselves their heirs and assigns do hereby except and
reserve one-half interest of all oil and gas in and
underlying said premises." (5/26/24 Harrah Deed.) The
deed was recorded on February 27, 1942. On September 8, 1952,
the surface rights were conveyed to Carl Kross,
Appellees' father. The deed referred to the exception
found within the Harrah Deed. Appellees obtained the surface
rights through a certificate of transfer filed on February 3,
2003. While Michael Kross was also given an interest in the
property, he conveyed his interest to Joe Kross.
A tax parcel pertaining to the mineral interest was created
in the name of Parthenia (Harrah) Duggar. While the parties
do not know the exact date the parcel was created, it was
clearly created prior to her death on February 29, 1964. The
parcel remains of record. On June 30, 2011, Jefferson County
filed a tax lien foreclosure on the parcel. However, the lien
was dismissed after Appellants made a full payment.
On September 14, 2011, Appellees published notice of intent
to declare the Harrah interests abandoned in a local
newspaper. On November 2, 2011 and November 10, 2011,
Appellees filed separate affidavits of abandonment.
Appellants, each living in a different state, learned of the
notice through a third party. In response, on November 14,
2011, several Harrah heirs filed affidavits of preservation.
The affidavits were filed by: Jean Yvonne Ruff, Fredrick
Simpson on behalf of himself and his siblings Lincoln Simpson
and Polly McJessy, Scott Harrah as executor of the estate of
James Harrah and on behalf of the estate, and Jean Yvonne
Ruff on behalf of the testamentary trust of Parthenia
On June 21, 2012, Appellees filed a declaratory judgment and
quiet title complaint. On July 23, 2012, Appellants filed an
answer and a counterclaim. On May 31, 2013, Appellees filed a
motion for summary judgment. Appellants responded by filing a
"Reply Brief and Affidavit Contra to Plaintiffs Motion
for Summary Judgment" on July 1, 2013. On September 13,
2013, the trial court granted Appellees' motion based on
the 1989 DMA. This timely appeal followed.
The appeal was stayed pending the Ohio Supreme Court's
ruling on several related DMA cases. After the Ohio Supreme
Court released Opinions on these matters, Appellants and
Appellees each filed a position statement updating their
An appellate court conducts a de novo review of a
trial court's decision to grant summary judgment, using
the same standards as the trial court set forth in Civ.R.
56(C). Grafton v. Ohio Edison Co., 77 Ohio St.3d
102, 105, 671 N.E.2d 241 (1996). Before summary judgment can
be granted, the trial court must determine that: (1) no
genuine issue as to any material fact remains to be
litigated, (2) the moving party is entitled to judgment as a
matter of law, (3) it appears from the evidence that
reasonable minds can come to but one conclusion, and viewing
the evidence most favorably in favor of the party against
whom the motion for summary judgment is made, the conclusion
is adverse to that party. Temple v. Wean United,
Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).
Whether a fact is "material" depends on the
substantive law of the claim being litigated. Hoyt, Inc.
v. Gordon & Assoc, Inc., 104 Ohio App.3d 598, 603,
662 N.E.2d 1088 (8th Dist.1995).
"[T]he moving party bears the initial responsibility of
informing the trial court of the basis for the motion, and
identifying those portions of the record which demonstrate
the absence of a genuine issue of fact on a material element
of the nonmoving party's claim." (Emphasis deleted.)
Dresher v. Burt, 75 Ohio St.3d 280, 296, 662 N.E.2d
264 (1996). If the moving party carries its burden, the
nonmoving party has a reciprocal burden of setting forth
specific facts showing that there is a genuine issue for
trial. Id. at 293. In other words, when presented
with a properly supported motion for summary judgment, the
nonmoving party must produce some evidence to suggest that a
reasonable factfinder could rule in that party's favor.
Brewer v. Cleveland Bd. of Edn., 122 Ohio App.3d
378, 386, 701 N.E.2d 1023 (8th Dist.1997).
The evidentiary materials to support a motion for summary
judgment are listed in Civ.R. 56(C) and include the
pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence, and written
stipulations of fact that have been filed in the case. In
resolving the motion, the court views ...