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Kross v. Ruff

Court of Appeals of Ohio, Seventh District, Jefferson

June 12, 2017

JERRY RUFF, Executor of the Estate of JEAN YVONNE RUFF, Deceased, et al. DEFENDANTS-APPELLANTS

         Civil Appeal from the Court of Common Pleas of Jefferson County, Ohio Case No. 12 CV 303

          For Plaintiffs-Appellees: Atty. Steven J. Shrock Atty. Clinton G. Bailey Critchfield, Critchfield & Johnston, Ltd.

          For Defendants-Appellants: Atty. John Curtis Alberti John Curtis Alberti Co., LPA

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


          WAITE, J.

         {¶1} 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.

         Factual and Procedural History

         {¶2} 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.

         {¶3} 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.

         {¶4} 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 (Harrah) Duggar.

         {¶5} 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.

         {¶6} 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 respective briefs.

         Summary Judgment

         {¶7} 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).

         {¶8} "[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).

         {¶9} 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 ...

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