Court of Appeals of Ohio, Seventh District, Belmont
Reconsideration Granted; Judgement of the Trial Court is
Reversed and Remanded.
Gregory W. Watts, Atty Matthew W. Onest, Atty Wayne A. Boyer,
Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A., for
Thomas D. White, Atty. Katherine M.K. Kimble, The White Law
Office Co., for Defendants-Appellants.
BEFORE: Carol Ann Robb, Cheryl L. Waite, David A.
OPINION AND JUDGMENT ENTRY
On October 21, 2019, Appellee Senterra Ltd. filed an
application for reconsideration from our October 11, 2019
decision in Senterra Ltd. v. Winland, 7th Dist.
Belmont No. 18 BE 0051, 2019-Ohio-4387. Appellants Alan T.
Winland, Laura J. Winland, Linda Godek, Clarence Winland,
Frances Faulkner, Norman Winland, Teresa Winland, John D.
McBrayer, Brenda S. Langkopf, Amy Kay Fahner, Jeff Fahner,
Lori Jo Podsobinski, Charles Patterson, Cathy Patterson,
Debra Saunders, Bill Saunder, Diane McBrayer Andersen, Brian
Andersen, Dan Pobsobinski, Tracey Pobsobinski, Linda
Dollison, and Larry Pobsobinski filed a motion in opposition
to the application.
The application for reconsideration was timely filed pursuant
to App.R. 26(A). Appellants filed a motion for leave to file
an opposition motion instanter; that motion will be
considered by this court in deciding the application.
Although App.R. 26(A) does not set forth the test to be used
in determining whether to reconsider a decision, the test
generally applied by this court and other courts is whether
the motion for reconsideration calls to the attention of the
court an obvious error in its decision or raises an issue for
our consideration that was either not considered or not fully
considered in the appeal. Deutsche Bank Natl. Trust Co.
v. Knox, 7th Dist. Belmont No. 09-BE-4, 2011-Ohio-421,
2011 WL 334508, ¶ 2, citing Matthews v.
Matthews, 5 Ohio App.3d 140, 143, 450 N.E.2d 278 (10th
Dist.1981). An application for reconsideration is not
designed for use in instances where a party simply disagrees
with the conclusions reached and the logic used by an
appellate court. Deutsche Bank at ¶ 2, citing
State v. Owens, 112 Ohio App.3d 334, 336, 678 N.E.2d
956 (11th Dist.1996). Rather, it provides a mechanism to
prevent the possible miscarriage of justice that may arise
where an appellate court makes an obvious error. Deutsche
Bank, citing Owens.
Appellee asserts this court should reconsider its resolution
of assignment of error number three entering judgment for
Appellants on that issue. Appellee argues our resolution of
assignment of error number three holding the trial court
should not have applied the Talbot/Duhig rule to
Reservation 5 and instead should have applied the MTA and
should have determined the MTA preserved the interest,
revives its claim that Reservation 5 was abandoned under the
DMA. They specifically ask for this court to remand the
matter to the trial court for a determination of whether
"Oil and Gas Reservation 5 was abandoned under the 2006
In the trial court's grant of summary judgment to
Appellee, it stated its resolution of the claims rendered
Appellee's DMA abandonment claims moot. Our determination
that the Duhig/Talbot Rule was inapplicable and that
the MTA applied and under the MTA the interest described in
Reservation 5 was preserved, effectively revives the claim
that the interest described in Reservation 5 was abandoned
under the DMA. Accordingly, Appellee is correct, this court
should have remanded the matter to the trial court to review
the 2006 DMA claim as it pertains to Reservation 5.
Therefore, in order to prevent a manifest miscarriage of
justice and to ensure the trial court considers the DMA claim
as it pertains to the interest described in Reservation 5 we
will reconsider our decision. Instead of entering judgment
for Appellants on the third assignment of error, we reverse
the trial court's decision on that issue and remand for
Consequently, the third paragraph of our decision should
For the reasons expressed below, the trial court's
decision is affirmed in part, reversed in part, and remanded
for further proceedings. The MTA is applicable. The trial
court correctly determined the root of title for Reservations
1 through 4 and that those interests were extinguished under
the MTA. As to Reservation 5, the trial court was incorrect
in its determination that the Duhig Rule applied.
The MTA is applicable to this reservation and under the MTA
George Russell's (his heirs and assigns) 1/4 reservation
is preserved through specific repetitions of that ...