Court of Appeals of Ohio, Seventh District, Monroe
Appeal from the Court of Common Pleas of Monroe County, Ohio.
Case No. 2013-435
Plaintiffs-Appellees: Atty. Ethan Vessels Fields, Dehmlow
& Vessels A Limited Liability Company.
Defendants-Appellants: Atty. Charles H. Bean Thornburg &
JUDGES: Hon. Carol Ann Robb Hon. Gene Donofrio Hon. Cheryl L.
Intervenors-Appellants Katherine Haselberger, Charlotte McCoy
and John L. Christman appeal the decision of Monroe County
Common Pleas Court granting summary judgment for
Plaintiffs-Appellees Ronald and Candace Talbot. This case
involves the 1989 and 2006 versions of the Ohio Dormant
Mineral Act (DMA) and interpretation of deeds transferring
oil and gas royalty, bonus, and rental interests. Appellees
are the surface owners and Appellants claim to be the holders
of the oil and gas royalty, bonus, and rental interests
underlying the surface. The trial court made two separate
holdings in favor of Appellees. First, it found the 1989
version of the DMA was applicable and under that act, the oil
and gas royalty, bonus, and rental interests were abandoned
and vested with the surface. Second, it found Appellants did
not demonstrate they were the holders of the oil and gas
royalty, bonus, and rental interests. It found the deeds
Appellants claimed gave them title to the oil and gas
royalty, bonus, and rental interests did not transfer any
interest to Appellants' predecessor.
Three issues are raised in this appeal. The first issue is
whether the trial court erred in applying the 1989 DMA. The
second issue is whether the trial court erred in failing to
consider the 1945 Deed from Ernest and Glena Ward to Nova A.
Christman, Appellants' predecessor, selling Ward's
"1/2 part of the royalty of all the oil and gas and the
1/2 of all rentals and bonuses in and under the subject
premises to Christman. The third issue is whether the trial
court erred when it determined the deed from Dow and Mary
Mellott to John and Minnie Tomolonis did not convey any oil
and gas interest to John and Minnie Tomolonis, but rather the
Mellotts retained the remaining 1/2 royalty of the oil and
gas and 1/2 interest of all rentals and bonuses.
For the reasons expressed below, the trial court's grant
of summary judgement for Appellees is reversed and the matter
is remanded with instructions for the trial court to enter
summary judgment for Appellants. Appellants own the entire
oil and gas royalty, rental, and bonus interests underlying
the real property at issue.
of the Case
Appellees own 70.25 acres in Monroe County. This tract of
land was part of a larger 117.33 acre tract of land owned by
E.M. and Glena Ward in the early 1930s.
In 1931, the Wards conveyed the 117.33 acres to Walter Ady.
The deed contained a reservation for 3/4 of the oil and gas
royalty, rental, and bonus interests. The deed also indicated
the coal was excepted from the conveyance because it was
already sold to Samuel W. Harper of Wheeling, West Virginia.
In 1934 Ady conveyed the surface and unreserved interest back
to E.M. Ward. He did not reserve any interest. The deed,
however, did reference the prior exception of coal.
In 1936, E.M. Ward conveyed the 117.33 acres to Dow Mellott.
However, in doing so, Ward reserved 1/2 of the oil and gas
royalty, rentals, and bonuses. This deed also indicated the
coal was excepted from the conveyance because it was already
sold. Ward's reserved 1/2 oil and gas royalty, rental,
and bonus interests were sold to Nova A. Christman in 1945.
In identifying the 1/2 interest underlying the 117.33 acres,
the deed described the 117.33 acres in the same manner that
it was described in previous deeds.
In 1943, Mellott conveyed the 117.33 acres to Minnie
Tomolonis. There was a reservation and exception in the deed
stating, "Excepting and reserving the coal Known as the
Pittsburgh or No. 8 vein, the same having been sold to Samuel
W. Harper of Wheeling, W.Va. Also excepting 1/2 of the oil
and gas royalty and 1/2 of all rentals and bonuses from the
In 1949, John and Minnie Tomolonis conveyed the 117.33 acres
to Martha Conway, Elizabeth Balzdorfer, Walter Dietrich,
Rilla May Rose, and Silvia McDaniel (Conway, et al.). The
reservation in the deed provided, "The grantors reserve
and except unto themselves, their heirs and assigns, the one
half of oil and gas, with the right to enter upon said
premises for the purpose of producing the same. Also
excepting and reserving the coal and mining rights and the
oil and gas rights as heretofore reserved, excepted and
conveyed by former owners of said premises."
The Tomolonises sold their purported 1/2 oil and gas interest
in all rental, royalty, and bonus interests underlying the
117.33 acres to Nova and Dollie Christman in 1967.
Following the Tomolonises conveyance of the surface to
Conway, et al., the surface was conveyed multiple times
before Appellees purchased 70.23 acres of the 117.33 acres.
All of those deeds contained an exception for any coal, oil,
or gas that had previously been reserved.
In November 2013, Appellees sought to have the surface estate
reunited with the mineral estate under the 1989 DMA. They
filed a complaint for declaratory judgment and quiet title.
Appellees named Ray Ward, Denver Ward, Nellie Nutt, Marcelene
Norris, Carol Pittman, Lulu Belle Pierce, Vera Given, Audrey
Ward, Sheryl Clift, Shelia Ferguson, Terry Pierce, Francis
Ward and unknown heirs of Walter Ady. The named defendants were
the known heirs of Glena and Ernest Ward and the unknown
heirs of Ady. Due to unknown heirs and not knowing some of
the addresses of the known heirs, Appellees published notice
of the suit. 1/9/14 Publication Notice.
On December 31, 2013, Appellants, the Christman heirs, filed
a motion to intervene claiming they were holders of 1/2 of
the interest in the oil and gas royalty, bonus, and rental
interests underlying Appellees' property. The motion to
intervene was granted. 1/16/14 J.E.
Appellants filed an Answer, Counterclaim, and Crossclaim.
Their filing contained a recitation of the property
transactions from Ward to Ady, Ady to Ward, Ward to Mellott,
Mellott to Tomolonis, and so forth up to Appellees. In this
recitation was the 1967 Tomolonis-Christman deed whereby
Tomolonis conveyed his purported 1/2 interest in the oil and
gas royalty, bonus, and rental interests to Christman.
Appellants stated they filed an Affidavit/Claim/Notice to
Preserve Mineral Interest in December 2013, which listed the
Tomolonis-Christman 1967 conveyance of 1/2 of the oil and gas
interest. Appellants also asserted the claims were governed
by the 2006 DMA, not the 1989 DMA arguing the 2006 DMA
superseded the 1989 DMA. Therefore, they asserted their claim
to preserve prevented the oil and gas interests from being
deemed abandoned. At this point, Appellants were not claiming
to own the entire oil and gas interest.
Appellees answered the counterclaim. They asserted the
Tomolonis-Christman 1967 deed conveyed nothing to Christman
because Tomolonis did not have anything to convey. They
asserted Ward retained 1/2 interest and Mellott retained 1/2
interest. Therefore, when Mellott conveyed the 117.33 acres
to Tomolonis, there was no conveyance of a mineral interest.
Furthermore, they contended the 1989 DMA was not superseded
by the 2006 DMA.
Appellees filed their motion for summary judgment asserting
the same claims set forth in the answer to the counterclaim.
The summary judgment motion contained a chart of the property
transactions. Appellees' assertion in the complaint that
the prior mineral holders were the heirs of Ward and heirs of
Ady, was altered by Appellants' motion to intervene and
counterclaim. It appeared they were now asserting the heirs
of Mellott and Ward were the holders of the mineral interest,
but those interests were abandoned.
Appellants filed their motion for summary judgment asserting
they owned 1/2 of the oil and gas royalty, rental, and bonus
interests. They asserted the Mellott-Tomolonis deed did not
reserve a 1/2 interest to Mellott. Rather, they argued the
exception language was notice of the reservation by Ward.
Thus, Mellott's conveyance to Tomolonis conveyed all the
interest Mellott owned, which was the surface and 1/2 the oil
and gas royalty, bonus, and rental interests. They also
asserted the 1989 DMA was superseded by the 2006 DMA. As
such, their claim to preserve prevented the interests from
being deemed abandoned.
Approximately two weeks after their motion for summary
judgment was filed, Appellants filed a supplement to the
Summary Judgment Motion. For the first time, Appellants
claimed they owned 100% of the oil and gas royalty, bonus,
and rental interests. Appellants referenced and attached the
1945 Ward-Christman deed to support their claim. Appellants
also cited a new case to support their position that the
Mellott-Tomolonis deed did not reserve 1/2 oil and gas
royalty, bonus, and rental interests to Mellott. It was a
Texas case, Duhig v. Peavey-Moore, 135 Texas, 503,
144 S.W.2d 878 (1940). Attached to the supplement was a filed
and recorded Corrective Affidavit/Claim/Notice to Preserve
Mineral Interest, which listed the Tomolonis-Christman 1967
conveyance and the 1945 Ward-Christman conveyance. This
affidavit purported to preserve the whole interest to the oil
and gas royalty, bonus, and rental interests.
Filed jointly with the supplemental summary judgment motion
was a request for a new briefing schedule and permission to
amend their answer, counterclaim, and cross claim. Despite
Appellees' opposition to the motion, the trial court
granted the request.
Appellants then filed an Amended Answer and Counterclaim
asserting they own 100% of the oil and gas royalty, bonus,
and rental interests. They also once again argued the 1989
DMA was superseded by the 2006 DMA. Appellees answered the
Appellants filed a Second Amended Motion for Summary Judgment
and asserted all the same claims previously asserted in the
first motion for summary judgment and the supplemental motion
for summary judgment. They claimed to own 100% of the oil and
gas royalty, bonus, and rental interests. One half of the
interest was derived from the Tomolonises. They cited the
Duhig case to support this position. The other half
was derived from the 1945 Ward-Christman deed.
The trial court entered summary judgment for Appellees.
2/11/15 J.E. The court found, under the 1989 DMA, the mineral
interest at issue was abandoned and merged with the surface
estate. 2/11/15 J.E. The court additionally stated the
Tomolonises never possessed a half interest to convey to
Christman. 2/11/15 J.E. Therefore, the Tomolonis-Christman
deed did not transfer any interest. 2/11/15 J.E. In rendering
its ruling, the trial court set forth a chart of the
conveyances starting with Ward's conveyance to Ady and
ending with Appellees acquiring the surface. 2/11/15 J.E.
This chart does not reference the 1945 Ward-Christman oil and
gas royalty, bonus, and rental interests deed, nor does it
indicate why this 1945 deed was not considered. In fact, the
judgment entry does not address the other half interest
Appellants claimed to own.
Appellants filed a timely appeal from the trial court's
decision. Prior to briefing, the matter was stayed pending
the Ohio Supreme Court's decision on whether the 1989 DMA
was superseded by the 2006 DMA. After the Court rendered its
decision in Corban v. Chesapeake Exploration, LLC,
the stay was lifted.
A court properly grants summary judgment "when an
examination of all relevant materials filed in the action
reveals that 'there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law.'" Smith v.
McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d
954, ¶ 12, quoting Civ.R. 56(C). 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.
Fourth, and Fifth Assignments of Error Ohio Dormant Mineral
Court below erred in finding that the 1989 Dormant Mineral
Act applied to this case which was filed after the effective
date of the 2006 Dormant Mineral ...