[Cite as Richmond Mill, Inc. v. Ferraro, 2020-Ohio-585.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                 JEFFERSON COUNTY

                                 RICHMOND MILL, INC. et al.,

                                        Plaintiffs- Appellees,

                                                     v.

                           MARGARET ALOE FERRARO et al.,

                                     Defendants- Appellants.


                        OPINION AND JUDGMENT ENTRY
                                         Case No. 18 JE 0015


                               Applications For Reconsideration and
                                    Cross Motion to Reconsider

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


                                              JUDGMENT:
                                                Denied.


 Atty. Matthew W. Onest, Atty. Gregory Watts, Atty. John Burnworth, Krugliak, Wilkins,
 Griffiths, & Dougherty Co., LPA., 4775 Munson Street, NW, PO Box 36963, Canton,
 Ohio 44718 for Plaintiffs-Appellees and
 Atty. David K. Schaffner, Schaffner Law Offices, Co., LPA., 132 Fair Avenue, NW, New
 Philadelphia, Ohio 44663 for Defendants-Appellants.

                                      Dated: February 18, 2020
                                                                                        –2–




 PER CURIAM.

       {¶1}   On December 9, 2019, this court released a decision wherein we affirmed
in part and reversed in part the decision of the Jefferson County Common Pleas Court
which extinguished the mineral interests of four Appellants (and their partnership) in favor
of Appellees Richmond Mills Inc. et al. We affirmed the portion of the trial court’s decision
which extinguished the mineral interests of two appellants (Linda Antonelli Nucci and
Joyce DeLuca). We reversed the extinguishment decision entered against the other two
appellants (Margaret Aloe Ferraro and Gilda Ognibene) as we found they continually
possessed their interest for more than 40 years at the time they filed preservation notices.
       {¶2}   Appellants filed a timely application for reconsideration, arguing Nucci and
DeLuca should be protected by the statutory continuous possession provision merely
because Ferraro and Ognibene satisfied its requirements.          Appellees filed a timely
application for reconsideration of the decision that the mineral interests of Ferraro and
Ognibene were not extinguished.        For the following reasons, both applications for
reconsideration are denied.
                          App.R. 26(A) Application for Reconsideration
       {¶3}   App.R. 26(A)(1) provides for the timely filing of an application for
reconsideration of an appellate decision but includes no guidelines for determining
whether to reconsider a decision.       Pursuant to case law, when an application for
reconsideration is timely filed, the appellate court considers whether the motion points to
an obvious error or to an issue that was not fully considered when it should have been.
State v. Henderson, 7th Dist. Mahoning No. 16 MA 0057, 2019-Ohio-130, ¶ 3, citing Hills
& Hollers LLC v. Ohio Gathering Co. LLC, 7th Dist. No. 17 BE 0040, 2018-Ohio-3425, ¶
4, citing Columbus v. Hodge, 37 Ohio App.3d 68, 523 N.E.2d 515 (10th Dist.1987),
paragraph one of the syllabus. “Reconsideration is not a second appeal or a mechanism
to raise a new argument.” Henderson, 7th Dist. No. 16 MA 0057 at 3, citing Hills & Hollers,
7th Dist. No. 17 BE 0040 at ¶ 4. Furthermore: “We need not re-explain our decision
where the defendant is merely using the application as a means to express dissatisfaction
with the logic used and conclusions reached in the appellate decision.”           Id.   (The


Case No. 18 JE 0015
                                                                                         –3–


application is also often overused as a means to extend the time for filing an appeal in
the Ohio Supreme Court which requires a thorough memorandum in support of
jurisdiction to be filed with the notice of appeal or within 45 days of the appellate judgment
if a stay is sought).
                             Appellants’ Reconsideration Application
       {¶4}    Appellants argue we committed an obvious legal error in holding that the
statutory continuous possession exception applicable to the same record owner only
protects those owners who satisfy the exception. Appellants state: R.C. 5301.51(B)
makes continuous possession for 40 or more years equivalent to filing the notice
mentioned in division (A) before the termination of the 40-year period; division (A) refers
to R.C. 5301.52, which provides for the notice of preservation; the Dormant Mineral Act
(DMA) in R.C. 5301.56 also incorporates the requirements of R.C. 5301.52 and states
such a notice preserves the rights of all holders of a mineral interest in the same lands;
and the Ohio Supreme Court recognized the DMA allows a preservation claim by one
mineral interest owner to protect the other owners of the mineral interest in Dodd v.
Croskey, 143 Ohio St.3d 293, 2015-Ohio-2362, 37 N.E.3d 147, ¶ 28.
       {¶5}    However, R.C. 5301.56 is the DMA, which is used for abandonment claims,
and the Dodd case at ¶28 was expressly applying the provision in the DMA to an
abandonment case. We specifically considered and rejected the use of the DMA to
govern this extinguishment claim. In overruling Appellant’s first assignment of error, we
explained our existing position that there is no irreconcilable conflict in applying the DMA
to abandonment claims and the other statutes in the MTA to extinguishment claims.
Richmond Mills Inc. v. Ferraro, 7th Dist. Jefferson No. 18 JE 0015, 2019-Ohio-5249, ¶ 7-
26. Likewise, a statement in the DMA (that a claim filed in compliance with the DMA
preserves from abandonment the rights of all holders in the same lands) does not apply
to other statutes. Id. at ¶ 43.
       {¶6}    We note the dissent in our case would have allowed the continuous
possession by two record owners to satisfy the statute for the two deceased former
mineral owners. The majority rejected this result with a thorough analysis, including
consideration of this very provision in the DMA. In deciding this case, we explicitly used
the DMA provision in R.C. 5301.56(C)(2) for contrast purposes to show how the same



Case No. 18 JE 0015
                                                                                       –4–


provision was not in the MTA provisions for a preservation notice or in its continuous
possession exception to MTA extinguishment. Id. Even the dissent did not cite this
provision in the DMA as binding in an extinguishment case applying the continuous
possession exception; rather, the dissent merely considered the “rationale underpinning”
of the provision in R.C. 5301.56(C)(2). Id. at ¶ 46 (D’Apolito, J., dissenting). There is no
reason to reconsider our decision as we do not believe that a provision in the DMA is
applicable to extinguishment proceedings.
                             Appellees’ Reconsideration Application
       {¶7}   Appellees argue this court erred in applying the continuous possession
provision to Appellants Ferraro and Ognibene, a unanimous decision by this court. First,
Appellees say our application of the provision to those who are not in physical possession
of the minerals ignores the plain meaning of the word possession. Appellees urge that
merely because constructive possession by legal title can be sufficient in other statutes
using the word possession (such as a quiet title action), the notice-equivalency provision
for continuous possession requires more.         They say the “filing for record” (of a
preservation notice) under division (A) is the constructive part of the statute and there
would be no need for division (B) if record ownership was sufficient for possession. Noting
the MTA’s purpose of allowing reliance on a record chain of title, Appellees claim a
determination of whether someone is still alive defeats this purpose.
       {¶8}   As to the latter point, the determination of physical possession (or tax
payments on the minerals for instance) similarly requires research in addition to mere
record chain of title. Furthermore, our decision clearly reviewed division (B) of R.C.
5301.51 in conjunction with division (A). Richmond Mills Inc., 7th Dist. No. 18 JE 0015 at
¶ 30. Our refusal to add the word “physical” before “possession” in division (B) does not
make division (B) superfluous. Division (A) allows a person to file a notice, while division
(B) relieves a person from filing a notice when they are the same record owner in
continuous possession for 40 years. We considered Appellees’ argument presented on
appeal and rejected their contention that physical possession was required. Id. at ¶ 27-
44. As Appellants point out, Appellees merely disagree with our conclusion.
       {¶9}   Next, Appellees argue that even if the possession of the mineral interest by
the surviving mineral holders was sufficient under R.C. 5301.51(B), the following statutory



Case No. 18 JE 0015
                                                                                           –5–


element prohibiting title transactions was not met. That is, R.C. 5301.51(B) begins: “If
the same record owner of any possessory interest in land has been in possession of the
land continuously for a period of forty years or more, during which period no title
transaction with respect to such interest appears of record in his chain of title * * *.”
(Emphasis added.) Appellees rely on the fact that Somerset Coal Company recorded a
warranty deed in 1975 transferring the property to Anthony Mining Company while stating
it was seized of an indefeasible estate in fee simple without mentioning a severed mineral
interest.
       {¶10} As Appellants respond, this deed is in the chain of the title for the property
after the grantors transferred half the minerals to Appellants in 1947 and then granted the
property to Somerset Coal in 1950 without mentioning the subject one-half mineral
interest. Richmond Mills Inc., 7th Dist. No. 18 JE 0015 at ¶ 5. The element cited by
Appellees refers to the chain of title for the record owner who is claiming protection under
the continuous possession provision: the title transaction must be “with respect” to the
subject mineral interest and “appear of record in his chain of title” (the chain of title for the
mineral interest record owner). R.C. 5301.51(B). See also Heifner v. Bradford, 4 Ohio
St.3d 49, 446 N.E.2d 440 (1983), paragraph 1 of syllabus (the title transaction preserving
a mineral interest can be part of an independent chain of title, i.e., the chain for the mineral
interest). In any event and as Appellants point out, Appellees did not make this argument
to the trial court or to this court on appeal.
       {¶11} Lastly, Appellees claim that even assuming the continuous possession
(notice equivalency) provision could be applied here, it could only be applied to Ognibene
and not to Ferraro because Ferraro died before Appellees filed their complaint. They say
the date of marketability was the date of the complaint, citing, e.g., Senterra Ltd. v.
Winland, 7th Dist. Belmont No. 18 BE 0051, 2019-Ohio-4387. However, in Senterra, we
found the arguments on the date marketability being determined were irrelevant in that
case. Id. at ¶ 62. The Senterra decision also pointed out that the case did not involve a
preservation notice which can affect the date marketability is being determined. Id.
       {¶12} The case at bar involved a 2013 notice of preservation filed when Ferraro
was still alive and still the same record owner in continuous possession. Appellees
misconstrue our holding on the date of marketability. Regardless of whether Ferraro filed



Case No. 18 JE 0015
                                                                                         –6–


a preservation notice in response to Appellees’ abandonment attempt under the DMA, it
was also a preservation notice under the MTA. To ascertain whether she was entitled to
file this notice or whether her interest was already extinguished, her eligibility under the
notice equivalency provision was at issue. We found the mineral owner Ferraro filed a
proper preservation notice since her possession as the same record owner of the interest
up to the date of the notice was continuous for more than forty years (and there was not
alleged to be a title transaction in her chain of title with respect to her mineral interest).
Her subsequent death before the complaint was filed against her three years later did not
eliminate the propriety of her preservation notice. We find no obvious legal error in
applying the continuous possession provision to the time when Ferraro filed her
preservation notice to ascertain if she was eligible to file the notice.
       {¶13} For all of the foregoing reasons, the applications for reconsiderations are
overruled.


 JUDGE CAROL ANN ROBB

 JUDGE GENE DONOFRIO

 JUDGE DAVID A. D’APOLITO

                                  NOTICE TO COUNSEL

 This document constitutes a final judgment entry.




Case No. 18 JE 0015
