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Richmond Mills, Inc. v. Ferraro

Court of Appeals of Ohio, Seventh District, Jefferson

December 9, 2019

RICHMOND MILLS, INC. et al., Plaintiffs-Appellees,
MARGARET ALOE FERRARO et al., Defendants-Appellants.

          Civil Appeal from the Court of Common Pleas of Jefferson County, Ohio Case No. 16 CV 223

         JUDGMENT: Affirmed in part; Reversed in part.

          Atty. Matthew W. Onest, Atty. Gregory Watts, Atty. John Burnworth, Krugliak, Wilkins, Griffiths, & Dougherty Co., LPA., for Plaintiffs-Appellees and

          Atty. David K. Schaffner, Schaffner Law Offices, Co., LPA., for Defendants-Appellants.

          BEFORE: Carol Ann Robb, Gene Donofrio, David A. D'Apolito, Judges.


          ROBB, J.

         {¶1} Defendants-Appellants Margaret Aloe Ferraro et al. appeal the decision of the Jefferson County Common Pleas Court granting summary judgment for Plaintiffs-Appellees Richmond Mills, Inc. et al. The trial court found the Marketable Title Act (MTA) operated to extinguish a one-half mineral interest which was severed in 1947 and granted to four individuals (doing business as a partnership). First, Appellants argue the MTA cannot be applied to minerals due to the existence of the more specific Dormant Mineral Act (DMA). This argument fails as the MTA provides for extinguishment while the DMA provides for abandonment; these are two distinct statutory claims with different tests and do not irreconcilably conflict.

         {¶2} Appellants alternatively contend their mineral interests could not be extinguished under the MTA due to the provision in R.C. 5301.51(B) because they showed continuous possession by the same record owner for 40 or more years which continued at the time marketability was being determined. We agree with this argument as applied to the two original grantees who were still alive at the time marketability was being determined. However, the two Appellants who claim ownership as successors of the other two original grantees have not demonstrated the applicability of the notice-equivalency provision in division (B) of R.C. 5301.51. They did not show the same record owner of each quarter interest in the severed one-half mineral interest had continuous possession for 40 years and continued to have possession when marketability was being determined.

         {¶3} For the following reasons, the trial court's judgment is affirmed as to Linda Antonelli Nucci and Joyce DeLuca, whose mineral interests were properly declared extinguished under the MTA, and as to Gamma Land Company. The trial court's judgment is reversed as to Margaret Aloe Ferraro and Gilda Ognibene, whose mineral interests were not extinguished under the MTA due to their continuous possession for over 40 years which continued through the time marketability was being determined.


         {¶4} In two 1947 deeds, eight grantors conveyed "an undivided one-half interest in mineral rights, oil and gas, excepting and reserving the No. 8 vein of coal" to: Mary Grace Nucci, Anna DeLuca, Margaret Aloe, and Gilda Ognibene (described as "partners in trade, doing business under the name and style of Gamma Land Company, a partnership * * *"). (Vol. 231, P. 291; tract one with 71 acres[1] and tract two with 125 acres and excepted acreage); (Vol. 231, P. 294; one tract with 202 acres). Nothing occurred in this chain of title until 2013.

         {¶5} Through two quitclaim deeds recorded in 1950, those eight grantors conveyed their realty to Somerset Coal Company without mentioning the prior one-half mineral interest granted in 1947. (Vol. 264, P. 45; one tract with 202 acres); (Vol. 264, P. 47; tract one with 71 acres and tract two with 125 acres, with excepted acreage). The subsequent deeds in this chain of title also failed to mention the 1947 one-half mineral interest. For instance, Somerset Coal Company made a conveyance in 1975 to Anthony Mining Company, Inc. without reference to the 1947 mineral interest. (Vol. 532, P. 154; tract one with 71 acres and tract two with 21 acres, citing the two tracts in Vol. 264, P. 47; tract three with 189 acres, citing Vol. 264, P. 45). This property was then conveyed in 1990 to Richmond Mills, Inc. (Vol. 13, P. 991).

         {¶6} On August 5, 2013, Richmond Mills, Inc. attempted to utilize the 2006 DMA to have the 1947 one-half mineral interest underlying the property it purchased in 1990 deemed abandoned by publishing notice of intent to declare a mineral interest abandoned. On October 3, 2013, notice of a claim to preserve the mineral interest was recorded by Margaret Aloe Ferraro, citing R.C. 5301.49, .51, .52. and .56. She described herself as a partner doing business as Gamma Land Company. She named the mineral interest holders as herself, Gilda Ognibene, and two successors to the other two original grantees. Gilda Ognibene recorded a similar claim to preserve on October 4, 2013.

         {¶7} Under the 2006 DMA, these were timely preservation notices. See R.C. 5301.56 H)(1) (within 60 days). And, they preserved the rights of other holders from abandonment under the DMA. See R.C. 5301.56(C)(2). On October 21, 2013, the successors to the other two original grantees recorded claims to preserve, explaining Joyce DeLuca was the widow and heir at law of Anna DeLuca's son, while "Linda (Nucci) Antonelli" was the widow and heir at law of Mary Grace Nucci's son.

         {¶8} On May 2, 2016, Richmond Mills, Inc. filed suit against the four individuals who recorded claims to preserve and Gamma Land Company.[2] The administrator of the estate of Margaret Aloe Ferraro, Francis T. Ferraro, was named as a defendant after the answer explained that Margaret died on November 18, 2014. The April 2017 amended complaint added PRC Legacy, LLC as a plaintiff after it purchased a portion of the subject property from Richmond Mills, Inc.

         {¶9} The plaintiff sought declaratory judgment and quiet title, setting forth an extinguishment claim under the MTA, stating the mineral reservation was not in their 1950 root of title or any subsequent recorded documents (until the October 3, 2013 claim to preserve, which was long after the 40-year MTA period expired). Alternatively, the plaintiffs outlined an abandonment claim under the 1989 DMA, recognized the Supreme Court law holding the 1989 DMA can no longer be used after the enactment of the 2006 DMA, and set forth constitutional claims concerning rights lost under the 2006 DMA. The defendants filed a counterclaim seeking a declaratory judgment that they owned the one-half mineral interest under the MTA and the DMA and alleging tortious interference with a business relationship and frivolous conduct.

         {¶10} Cross-motions for summary judgment were filed in 2018. The plaintiffs asked for summary judgment on their MTA claim stating the mineral interest was extinguished. They argued the defendants were not saved by R.C. 5301.51(B) (which acts as the equivalent of a notice of preservation for long-time owners in continuous possession) as there was no evidence of actual possession for the pertinent period.

         {¶11} First, the defendants countered that they preserved the mineral interest under the DMA and the MTA cannot be applied to a mineral interest as the DMA is more specific. Alternatively, the defendants argued the mineral interest was not extinguished under the MTA due to the notice-equivalency provision in R.C. 5301.51(B). They alleged there was continuous possession by the same record owner for 40 years or more which continued until the time marketability was being determined (said to be after the plaintiffs published the 2013 notice). Specifically, they said two of the original grantees, Margaret and Gilda, were still alive at that time and Gamma Land Company was still in existence. In reply, the plaintiffs said constructive possession was not sufficient as "actual, physical possession" was required by R.C. 5301.51(B). At an oral hearing, the parties agreed the facts were not in dispute.

         {¶12} On July 31, 2018, the trial court granted summary judgment in favor of the plaintiffs. The trial ruled the MTA can be applied to mineral interests and does not conflict with the DMA, stating the failed effort to reunite the surface with the minerals under the DMA did not affect the MTA claim. The trial court then concluded the MTA provision relied upon by the defendants required actual possession and found the defendants failed to show "an affirmative act or circumstance" suggesting they controlled the interest.

         {¶13} The defendants filed a timely notice of appeal. Their brief originally set forth three assignments of error, but they later withdrew the third assignment of error (which claimed the trial court should have found the plaintiffs constitutional DMA claim frivolous).


         {¶14} Appellants' first ...

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