Court of Appeals of Ohio, Seventh District, Harrison
RODNEY L. FORD, et al., PLAINTIFFS-APPELLANTS
NANCY BASKA [SIC, BAKSA], et al., DEFENDANTS-APPELLEES
Appeal from the Court of Common Pleas of Harrison County,
Ohio Case No. CVH-2015-0037.
Plaintiffs-Appellants: Rodney L. Ford & Jeanne E. Ford
Atty. Joshua E. O'Farrell Atty. Brandon O. Trent Tzangas,
Plakas, Mannos, Ltd.
Defendants-Appellees: Walter W. Graham, Rhonda M. Miller,
Sherri Myers, Cathy Swiger, John Does 1 [sic], and John Does
2 [sic] Atty. T. Owen Beetham
JUDGES: Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Carol
Rodney L. and Jeanne E. Ford (collectively referred to as
"Appellants") appeal a November 9, 2015 Harrison
County Common Pleas Court decision to grant Appellees'
Walter W. Graham, Rhonda M. Miller, Sherri Myers, Cathy
Swiger, John Does 1 [sic], and John Does 2 [sic]
(collectively referred to as "Appellees") motion to
dismiss the complaint in this dispute regarding the ownership
of mineral rights. Appellants argue that the trial court
erroneously dismissed their complaint, because they were bona
fide purchasers of both the surface and mineral interests of
the subject property. For the reasons that follow,
Appellants' arguments are without merit and the trial
court's decision is affirmed.
and Procedural History
This appeal concerns the ownership of minerals located
beneath 7.4 acres of land located in German Township,
Harrison County. On December 15, 2002, the owner of the
subject property, Hilda C. Graham, died. On April 3, 2003,
Graham's will was filed in probate court. Pursuant to her
will, the surface rights of the property were devised to her
daughter, Nancy Baksa. The mineral rights were to be divided
among her children as follows: 1/5 to Baksa, 1/5 to
Co-Appellee Walter W. Graham, 1/5 to Co-Appellee Mary Jane
Cline, 1/5 to Ronald A. Graham, and 1/5 to Co-Appellee Larry
E. Graham. On June 20, 2003, the probate court issued a
certificate of transfer erroneously listing Baksa as the
owner of the property in its entirety.
On October 16, 2007, Baksa conveyed the property to
Appellants. The deed stated that it was "[s]ubject
however to all easements, restrictions and reservations of
record." The deed includes a line stating: "Prior
Reference: Volume 139, Page 249 Harrison County Official
Records." (Emphasis deleted.) (Deed, p. 2.) The
reference refers to the June 20, 2003 probate court
certificate of transfer.
On February 5, 2008, Appellees filed an application to reopen
the estate. In the application, Appellees requested the
certificate of transfer be amended to reflect that only the
surface rights of the property were transferred to Baksa.
They also requested in their application that a second
certificate of transfer be issued to show the transfer of the
mineral rights pursuant to the terms of Graham's will. On
the same date, the probate court reopened the estate and
issued two certificates of transfer. The first certificate of
transfer amended the original certificate to reflect that the
property was transferred to Baksa, but specifically excluded
the mineral rights. The second certificate transferred the
mineral interests pursuant to Graham's will. Accordingly,
each of Graham's children received a one-fifth interest
in the minerals, except for Ronald Graham who appears to have
died. His interest was instead split equally among his heirs:
1/15 to Co-Appellee Sherri Myers, 1/15 to Co-Appellee Cathy
Swiger, and 1/15 to Co-Appellee Rhonda Miller.
On March 30, 2015, Appellants filed a complaint for breach of
warranty deed and seeking declaratory judgment and quiet
title against: Baksa, Walter W. Graham, Rhonda Miller, Sherri
Myers, Cathy Swiger, John Does 1 [sic], and John Does 2
[sic]. Appellants later voluntarily dismissed Baksa from the
action. In lieu of an answer, on June 22, 2015, Appellees
filed a motion to dismiss the complaint pursuant to Civ.R.
12(B)(6). In their motion Appellees argued that Baksa, the
sole signer of the October 16, 2007 deed, lacked authority to
transfer the entire mineral interest estate because she did
not own the minerals. Appellees based their arguments on the
Marketable Title Act ("MTA"), which provides that a
will filed in probate court is a recorded instrument.
Appellants filed a response arguing that they were bona fide
purchasers of the property in its entirety. On November 9,
2015, the trial court granted Appellees' motion to
dismiss. This timely appeal followed.
THE TRIAL COURT IMPROPERLY GRANTED DEFENDANTS-APPELLEES'
MOTION TO DISMISS PLAINTIFFS-APPELLANTS' RODNEY L. FORD
AND JEANNE E. FORD'S COMPLAINT PURSUANT CIV.R. 12(B)(6).
"A Civ.R. 12(B)(6) motion to dismiss for failure to
state a claim upon which relief can be granted tests only the
legal sufficiency of the complaint." Youngstown Edn.
Assn. v. Kimble,2016-Ohio-1481, 63 N.E.3d 649, ¶
11 (7th Dist.), State ex rel. Hanson v. Guernsey Cty. Bd.
of Commrs.,65 Ohio St.3d 545, 548, 605 N.E.2d 378
(1992). When reviewing a Civ.R. 12 (B)(6) motion, "the
court must accept the factual allegations contained in the
complaint as true and draw all reasonable inferences from
these facts in favor of the plaintiff." Kimble,
supra, at ¶ 11, citing Mitchell v. Lawson Milk
Co.,40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). In
order to grant a Civ.R. 12(B)(6) motion, "it must appear
beyond doubt from the complaint that the plaintiff can prove
no set of facts entitling him to recovery."
O'Brien v. Univ. Community Tenants Union, Inc.,42 Ohio St.2d 242, 327 N.E.2d 753 (1975), syllabus. However,
"[i]f there is a set of facts consistent with the
complaint that would allow for recovery, the court must not
grant the motion to dismiss." Kimble, supra, at
¶ 11, citing York ...