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Pabin v. Eberle

Court of Appeals of Ohio, Seventh District, Monroe

June 28, 2019

PHILIP F. PABIN ET AL., Plaintiffs-Appellees,
v.
ELLA EBERLE ET AL., Defendants-Appellants.

          Civil Appeal from the Court of Common Pleas of Monroe County, Ohio Case No. 2015-346

          C. Keith Plummer, Tribbie, Scott, Plummer & Padden, for Plaintiffs-Appellees.

          Thomas 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. D'Apolito, Judges.

          OPINION AND JUDGMENT ENTRY

          DONOFRIO, J.

         {¶1} 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).

         {¶2} 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 appellees).

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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 reservation).

         {¶7} 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.

         {¶8} 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.

         {¶9} 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).

         {¶10} 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 Resources.

         {¶11} 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.

         {¶12} 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.

         {¶13} 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 this time.

         {¶14} 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 fees.

         {¶15} 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.

         {¶16} 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.

         {¶17} 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, 2017.

         {¶18} 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 non-answering defendants.

         {¶19} 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.

         {¶20} 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.

         {¶21} 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.

         {¶22} 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.

         {¶23} 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.

         {¶24} 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.

         {¶25} 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.

         {¶26} 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.

         {¶27} 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 ...

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