Court of Appeals of Ohio, Seventh District, Monroe
PHILIP F. PABIN ET AL., Plaintiffs-Appellees,
ELLA EBERLE ET AL., Defendants-Appellants.
Appeal from the Court of Common Pleas of Monroe County, Ohio
Case No. 2015-346
Keith Plummer, Tribbie, Scott, Plummer & Padden, for
White, Atty. Matthew Kearney, Atty. Katherine Kimble, and
Atty. Craig Wilson, C.J. Wilson Law, LLC, for
Defendants-Appellees (Gerald Cramer et al.), and Atty. David
Schaffner, Schaffner Law Offices Co., L.P.A., for
Defendants-Appellants (Donald C. Cameron, et al.), and Atty.
David Wigham, Atty. Sara Fanning, Roetzel & Andress,
LPA., for Defendants-Appellants (Larry Kearns et al.).
BEFORE: Gene Donofrio, Cheryl L. Waite, David A.
OPINION AND JUDGMENT ENTRY
Defendants-appellants, Larry Kearns, Karrie Kearns, Lisa
Timmons, Randy Timmons, Penny Hersman, and Kim Hersman (the
Kearns appellants), appeal the judgment of the Monroe County
Common Pleas Court quieting title to oil and gas rights in
favor of defendants-appellees, Gerald Cramer, Mary Ella
Cramer, Betty Kelly, Edgar Kelly, Judy Eberle, Paul Eberle
Jr., and Karen Eberle (the Cramer appellees).
In a separate appeal, defendants-appellants, Donald Cameron,
Gloria Cameron, and ODMA Resources, LLC (the Cameron
appellants), appeal the trial court's award of summary
judgment in the same oil and gas rights in favor of
plaintiffs-appellees, Philip and Christina Pabin (the Pabin
This case involves two appeals: one from the Kearns
appellants (Case No. 18 MO 0009) and one from the Cameron
appellants (Case No. 18 MO 0008). This court consolidated the
two appeals since both sets of appellants are, in part,
appealing the same judgment entry. We will begin with the
Kearns appellants' assignments of error and a recitation
of the facts and events relevant to their appeal.
In 1924, Lewis and Ella Eberle owned the surface and all
mineral rights to real property in Monroe County, Ohio. On
September 11, 1924, Lewis and Ella conveyed 1/32 of the oil
and gas rights of the property to F.H. Ward and J.H. Cooper
(the Ward reservation). This left Lewis and Ella with the
remaining 31/32 of the oil and gas rights. The disposition of
the Ward reservation is not at issue in this appeal.
On October 5, 1944, Lewis died testate naming Ella his sole
heir. This made Ella the sole owner of the surface rights to
the property and the sole owner of oil and gas rights to the
property minus the Ward reservation.
In late 1961, Ella sold the surface rights of the property to
Emmet and Stella Huffman. In this conveyance, Ella reserved
her entire oil and gas interest in the property (the Eberle
On April 4, 1973, Ella died intestate. Ella left four heirs:
Arnold Eberle, Paul Eberle, Emmett Huffman, and Clyde Eberle.
Each of Ella's heirs inherited an equal 1/4 share of the
Eberle reservation. In addition to the 1/4 of the Eberle
reservation, Emmet and Stella Huffman also owned the surface
rights to the property.
All four of Ella's direct heirs have since died but have
left heirs of their own. Arnold Eberle's heirs are
appellees Gerald and Mary Ella Cramer. Paul Eberle's
heirs are appellees Betty Kelly, Edgar Kelly, Judy Eberle,
Paul Eberle Jr., and Karen Eberle. Emmett Huffman's heir
was Stella Huffman. When Stella Huffman died, her heir was
Donald Cameron. Clyde Eberle's heir is Eileen Eberle.
On May 11, 1976, Stella Huffman sold her rights to the
property, including the surface, to Kenneth Huffman (the
Huffman deed). On April 12, 1982, Kenneth Huffman sold his
rights to the property to Chester Pabin (the Chester deed).
On May 19, 1999, Chester Pabin sold his rights to the
property to the Pabin appellees (the Pabin deed).
On October 8, 2015, Eileen Eberle recorded an oil and gas
lease she entered into with Eclipse Resources. Eileen leased
her entire interest in the Eberle reservation to Eclipse
On October 22, 2015, the Pabin appellees filed this action
seeking to quiet title to all outstanding mineral and oil and
gas interests in the property on the basis that they were
abandoned under the 1989 Dormant Mineral Act (DMA). The Pabin
appellees also filed a motion and an affidavit to serve all
defendants by publication. The trial court approved service
by publication on October 28, 2015. Service by publication
began on December 7, 2015.
On January 12, 2016, Eileen Eberle died. Eileen's heirs
are appellant Penny Hersman and Vicky Kearns. On March 5,
2016, Vicky Kearns died. Vicky's heirs are appellants
Larry Kearns and Lisa Timmons.
Between February 16, 2016 and May 5, 2016, many parties
appeared in this action by either filing an answer, an answer
and a counterclaim, or a motion for leave to file an answer.
But the Kearns appellants did not appear in this action at
The Cramer appellees filed their answer to the Pabin
appellees' complaint on May 5, 2016. Their answer did not
contain a counterclaim or cross-claim and sought the
following relief: the complaint be dismissed with prejudice,
title to the subject minerals be quieted to Defendants in the
amount of their respective interest, defendants be awarded
damages in an amount to be determined at trial, and
defendants be awarded costs and reasonable attorney's
The Cramer appellees filed the first motion for summary
judgment on July 25, 2017. This motion not only sought
summary judgment on the Pabin appellees' claims, but also
argued that the Cramer appellees were entitled to the
non-answering defendants' interests in the Eberle
reservation. This included the Kearns appellants'
interest in the Eberle reservation.
On August 14, 2017, the Pabin appellees filed a motion for
default judgment against all non-answering defendants;
including the Kearns appellants. On the same day, the Pabin
appellees filed a response to the Cramer appellees'
motion for summary judgment.
On August 17, 2017, the Kearns appellants filed an
"unopposed motion to intervene." The Kearns
appellants argued that they were unaware of this action until
they hired counsel to represent them in a separate matter.
When their counsel was conducting research on the separate
matter, he discovered that this matter was pending. The
motion explained that counsel for the Pabin appellees had
consented to the intervention. The motion also contained an
answer and counterclaim. The trial court granted this motion
and deemed their answer and counterclaim filed on August 21,
On October 17, 2017, the trial court ruled on the pending
dispositive motions. The trial court held that 50% of the
Eberle reservation was quieted in favor of appellees Gerald
and Mary Ella Cramer and the other 50% was quieted in favor
of appellees Betty Kelly, Judy Eberle, and Paul Eberle, Jr.
This judgment entry categorized the Kearns appellants as
After the October 17, 2017 judgment entry was filed, several
motions by multiple parties were filed. Among these motions
was one from the Kearns appellants seeking clarification of
the trial court's October 17, 2017 ruling that they were
non-answering defendants when the trial court granted their
motion to intervene.
The numerous motions led the trial court to issue a judgment
entry on November 8, 2017. This judgment entry made two
rulings. First, it vacated the October 17, 2017 dispositive
motion ruling. Second, it vacated the August 21, 2017 ruling
permitting the Kearns appellants' intervention. The trial
court vacated the Kearns appellants' intervention on the
basis that the motion was only served on the Pabin appellees
and not on other defendants in this action and therefore, it
was not unopposed as the Kearns appellants argued.
On January 31, 2018, the Pabin appellees filed another motion
for default judgment. The Pabin appellees argued that they
were entitled to default judgment against all non-answering
defendants, including the Kearns appellants. Several other
motions for summary judgment and memos in opposition to
summary judgment were also filed.
On April 26, 2018, the trial court ruled on all pending
motions. The trial court readdressed the Kearns
appellants' motion to intervene. The trial court held
that the Kearns appellants were not permitted to intervene
because their motion was filed almost two years after the
Pabin appellees filed this action. Thus, the trial court held
that the motion was untimely and intervention would have
prejudiced the Cramer appellees.
The trial court then addressed all outstanding dispositive
motions. Relevant to the Kearns appellants' appeal, the
trial court held that the Pabin appellees were barred from
asserting any claim pursuant to the 1989 DMA pursuant to the
Ohio Supreme Court's decision in Corban v. Chesapeake
Exploration, LLC, 149 Ohio St.3d 512, 2016-Ohio-5796, 76
N.E.3d 1089. Addressing the Eberle reservation, the trial
court also held that the Pabin appellees had no claim to any
interest held by the Cramer appellees or the Kearns
appellants. Regarding the Kearns appellants' 1/4 of the
Eberle reservation (that they inherited from Eileen Eberle),
the trial court awarded it to the Cramer appellees as
follows: 50% to Gerald and Mary Ella Cramer and 50% to Betty
Kelly, Judy Johnson, and Paul Eberle Jr.
On May 3, 2018, the Kearns appellants filed a motion to
partially vacate the trial court's April 26, 2018
judgment. The Kearns appellants argued that the trial court
lacked personal jurisdiction over Eileen Eberle's
interest in the Eberle reservation because neither they nor
Eileen were properly served notice of this action. Both the
Pabin appellees and the Cramer appellees opposed this motion.
The Kearns appellants timely filed a notice of appeal on May
25, 2018. After this appeal was filed, the trial court denied
the Kearns appellants' motion to partially vacate
judgment. This court held that the trial court's ruling
on the motion to partially vacate was null and void and
remanded this matter to the trial court to reissue its ruling
on the motion to vacate. The trial court reissued its
judgment entry on the motion to vacate on July 10, 2018.
The Kearns appellants now raise four assignments of error.
Since the Kearns appellants' second and third assignments
of error are dispositive, we will address them out of order
and start with the third assignment of error.
The Kearns appellants' third assignment of error states:
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT SET ASIDE THE
ORDER GRANTING APPELLANTS [sic] LEAVE TO ...