[Cite as Darrah v. Baumberger, 2017-Ohio-8025.]



                           STATE OF OHIO, MONROE COUNTY
                                IN THE COURT OF APPEALS
                                      SEVENTH DISTRICT

GLENN R. DARRAH, ET AL.,                          )
                                                  )
        PLAINTIFFS-APPELLEES,                     )
                                                  )           CASE NO. 15 MO 0002
V.                                                )
                                                  )                 OPINION
MARJORIE BAUMBERGER, ET AL.,                      )
                                                  )
        DEFENDANTS-APPELLANTS.                    )

CHARACTER OF PROCEEDINGS:                         Civil Appeal from Court of Common
                                                  Pleas of Monroe County, Ohio
                                                  Case No. 2014-186

JUDGMENT:                                         Reversed and Remanded

APPEARANCES:
For Plaintiffs-Appellees                          Attorney Richard Yoss
                                                  Attorney Ryan Regal
                                                  122 North Main Street
                                                  Woodsfield, Ohio 43793-1002

For Defendants-Appellants                         Attorney Mark Ropchock
                                                  One Cascade Plaza, Suite 2210
                                                  Akron, Ohio 44308-1135




JUDGES:

Hon. Gene Donofrio
Hon. Mary DeGenaro
Hon. Carol Ann Robb


                                                  Dated: September 27, 2017
[Cite as Darrah v. Baumberger, 2017-Ohio-8025.]
DONOFRIO, J.

        {¶1}    Defendants-appellants, Marjorie Baumberger, Donald Schnegg, and
James Schnegg, appeal from a Monroe County Common Pleas Court judgment
granting summary judgment in favor of plaintiffs-appellees, Glen Darrah, Kathie
Darrah, Roger Darrah, and Susan Darrah, and finding that appellees are the rightful
owners of a certain mineral interest.
        {¶2}    The parties stipulated to the following relevant facts.
        {¶3}    Appellees are the surface owners of a particular parcel of property
located in Monroe County (the Property).
        {¶4}    Appellees’ predecessors in title, William and Elizabeth Kindelberger,
excepted and reserved certain oil and gas rights (Mineral Interest) in a 1908 warranty
deed to Harry Blatter as follows:

        It is understood and agreed between the grantors and grantee that all
        the coal, together with the usual mining rights and privileges also one
        half of the oil and gas contained in or lying under said above described
        premises are excepted and reserved and not conveyed by these
        presents. In the event that any rental is paid on an oil or gas Lease, the
        grantors are to receive the one half of said rental.

(Reservation Deed).
        {¶5}    The mineral interest was transferred to Dorothy Caldwell and Elizabeth
Caldwell by quitclaim deed in 1936.               Appellants are the sole heirs of Dorothy
Caldwell, who died November 3, 2012. Appellants claim to own an undivided ¼
interest in the oil and gas underlying the Property.
        {¶6}    On August 7, 2013, appellees filed an Affidavit of Abandonment stating
that none of the saving events set out in R.C. 5301.56(B)(1) occurred in the 20 years
preceding June 30, 2006 (the effective date of the 2006 Ohio Dormant Mineral Act).
Therefore, they claimed that the Mineral Interest was abandoned and vested in them
as the Property’s surface owners pursuant to the 1989 Ohio Dormant Mineral Act
(ODMA).
                                                                               -2-


       {¶7}     Pursuant to the 2006 ODMA, on December 4, 2013, appellees served a
Notice of Abandonment to those defendants whose addresses they could ascertain
and on December 19, 2013, appellees served a Notice of Abandonment by
publication.
       {¶8}     On January 9, 2014, appellants executed and recorded a Claim to
Preserve.
       {¶9}     On February 14, 2014, appellees filed and recorded an Affidavit of
Abandonment.
       {¶10} On May 27, 2014, appellees filed a complaint seeking a declaratory
judgment that they are the rightful owners of the mineral interest underlying the
Property.      They asserted claims under both the 1989 ODMA and the 2006 ODMA.
They also raised a claim for slander of title. Finally, they raised a claim that because
the Reservation Deed did not contain words of inheritance, it only reserved a life
estate in William and Elizabeth Kindelberger that expired at their deaths.
       {¶11} Appellants filed an answer and counterclaim. They too sought a
declaratory judgment that they are the rightful owners of the mineral interest
underlying the Property. And they too asserted claims under both the 1989 ODMA
and the 2006 ODMA.
       {¶12} The parties filed competing motions for summary judgment and an
agreed Stipulation of Facts.
       {¶13} The trial court granted summary judgment in appellees’ favor. In so
doing, it found that the 1989 ODMA was self-executing and was constitutional.
Relying on the 1989 ODMA, the court found that none of the savings events occurred
within the 20-year lookback period. Therefore, the court found that the 1989 ODMA
operated to have the Mineral Interest deemed abandoned and vested in appellees as
the surface owners as of March 22, 1992.
       {¶14} Appellants filed a timely notice of appeal on March 9, 2015. This court
held the appeal in abeyance pending the Ohio Supreme Court’s decisions in several
oil and gas cases. This case is now ready for review. Appellants raise a single
                                                                              -3-


assignment of error.
      {¶15} Appellants’ sole assignment of error states:

             THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY
      JUDGMENT IN FAVOR OF APPELLEES BASED UPON THE 1989
      [sic] VERSION OF THE DORMANT MINERAL ACT, WHICH THE
      TRIAL COURT BELIEVED TO BE “SELF EXECUTING.”

      {¶16} In reviewing a trial court's decision on a summary judgment motion,
appellate courts apply a de novo standard of review.        Cole v. Am. Industries &
Resources Corp., 128 Ohio App.3d 546, 552, 715 N.E.2d 1179 (7th Dist.1998).
Thus, we shall apply the same test as the trial court in determining whether summary
judgment was proper. Civ.R. 56(C) provides that the trial court shall render summary
judgment if no genuine issue of material fact exists and when construing the
evidence most strongly in favor of the nonmoving party, reasonable minds can only
conclude that the moving party is entitled to judgment as a matter of law. State ex
rel. Parsons v. Flemming, 68 Ohio St.3d 509, 511, 628 N.E.2d 1377 (1994).            A
“material fact” depends on the substantive law of the claim being litigated. Hoyt, Inc.
v. Gordon & Assoc., Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th
Dist.1995), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986).
      {¶17} Appellants argue the trial court erred in granting summary judgment to
appellees based on the 1989 ODMA. They contend that based on the Ohio Supreme
Court’s decision in Corban v. Chesapeake Expl., L.L.C., 149 Ohio St.3d 512, 2016-
Ohio-5796, 76 N.E.3d 1089, the 2006 ODMA controls this case.
      {¶18} Moreover, appellants argue that they complied with the 2006 ODMA by
filing a Preservation Notice Affidavit on January 9, 2014, in response to appellees’
Notice of Abandonment. Appellants claim that pursuant to Dodd v. Croskey, 143
Ohio St.3d 293, 2015-Ohio-2362, 37 N.E.3d 147, their claim to preserve (as the
mineral interest holders) under R.C. 5301.56(H)(1)(a) was sufficient to preclude the
                                                                                   -4-


mineral interest from being abandoned.
        {¶19} In Corban, 149 Ohio St.3d at ¶ 26-28, the Ohio Supreme Court held
that the 1989 ODMA was not self-executing and did not automatically transfer a
mineral rights interest from the mineral rights holder to the surface owner by
operation of law. Instead, a surface owner seeking to merge those rights with the
surface estate under the 1989 ODMA was required to commence a quiet title action
seeking a decree that the dormant mineral interest was deemed abandoned. Id. at
¶ 28.
        {¶20} The 2006 ODMA provides that a dormant mineral interest “shall be
deemed abandoned and vested in the owner of the surface of the lands subject to
the interest if the requirements established in division (E) of this section are satisfied.”
Id. at ¶ 29; R.C. 5301.56(B). The Court went on to hold:

               Dormant mineral interests did not automatically pass by
        operation of law to the surface owner pursuant to the 1989 law. Thus,
        as of June 30, 2006, any surface holder seeking to claim dormant
        mineral rights and merge them with the surface estate is required to
        follow the statutory notice and recording procedures enacted in 2006 by
        H.B. 288. These procedures govern the manner by which mineral rights
        are deemed abandoned and vested in the surface holder and apply
        equally to claims that the mineral interests were abandoned prior to
        June 30, 2006.

Id. at ¶ 31.
        {¶21} The Ohio Supreme Court reiterated its holding stating “the 2006 version
of the Dormant Mineral Act applies to all claims asserted after 2006 alleging that the
rights to oil, gas, and other minerals automatically vested in the owner of the surface
estate prior to the 2006 amendments.” Walker v. Shondrick-Nau, 149 Ohio St.3d 282,
2016-Ohio-5793, 74 N.E.3d 427, ¶ 16, citing Corban at ¶ 2.
        {¶22} Based on Corban, the trial court’s grant of summary judgment must be
                                                                                -5-


reversed because it relied on the 1989 ODMA.
        {¶23} Appellees admit that, based on Corban, their claim under the 1989
ODMA must fail and that the 2006 ODMA applies to this case. Appellees go on,
however, to argue that prior to Corban, vested rights were created in property owners
and that taking those vested rights away constitutes an unconstitutional taking. They
assert that the Ohio Supreme Court, on behalf of the State of Ohio, took the property
rights that had vested in surface owners and conveyed those interests to other
people. Therefore, appellees claim that the Corban decision is unconstitutional.
        {¶24} An appellate court is an intermediate court and is therefore bound by
Ohio Supreme Court decisions. Davis v. Montenery, 173 Ohio App.3d 740, 2007-
Ohio-6221, 880 N.E.2d 488, ¶ 31 (7th Dist.). An appellate court cannot overrule an
Ohio Supreme Court decision or declare an Ohio Supreme Court decision
unconstitutional. State v. Sheets, 12th Dist. No. CA2006-04-032, 2007-Ohio-1799,
¶ 16.
        {¶25} Based on the above, this court cannot declare Corban unconstitutional
as appellees wish.
        {¶26} Next, appellees argue that this case presents a different type of claim
than the one in Dodd v. Croskey, supra. Appellees claim that the mineral interest has
been abandoned under R.C. 5301.56(B)(3)(e) in this case as opposed to under R.C.
5301.56(H)(1) as was in Dodd. They argue that the filing of a claim to preserve
under (H)(1)(a) does not have the same effect as a claim to preserve under (B)(3)(e).
        {¶27} The question before the Ohio Supreme Court in Dodd was “whether a
mineral-interest holder's claim to preserve a mineral interest from being deemed
abandoned in accordance with R.C. 5301.56(H)(1)(a) is sufficient to preserve that
interest if the claim was filed after notice of the surface owner's intent to declare the
mineral interest abandoned and outside the 20-year window immediately preceding
that notice.” Dodd, 143 Ohio St.3d at ¶ 1. The court answered the question in the
affirmative.
        {¶28} On appeal to the Ohio Supreme Court, the Dodd appellants argued that
                                                                               -6-


the Croskey affidavit was not sufficient by itself to preclude abandonment because it
was filed after the appellants’ notice of abandonment was published. Id. at ¶ 23.
       {¶29} In addressing this argument, the Court looked to the ODMA. It pointed
out that before mineral interests can be vested in the surface owner, the surface
owner must complete two tasks.         Id. at ¶ 26, citing R.C. 5301.56(E).   First, the
surface owner must serve notice of the intent to declare the mineral interest
abandoned on the mineral interest holders pursuant to the statutory requirements.
Id., citing R.C. 5301.56(E)(1). Then between 30 and 60 days after the notice is
served or published, the surface owner must file and record an affidavit of
abandonment that meets the statutory requirements. Id., citing R.C. 5301.56(E)(2)
and (G).
       {¶30} The Court next reiterated that there are two ways for a mineral interest
holder to assert that a mineral interest has not been abandoned after notice of
abandonment: (1) the holder of the mineral interest can file a claim to preserve in
accordance with R.C. 5301.56(H)(1)(a); or (2) the holder can file an affidavit
describing a savings event that occurred in the 20 years preceding the notice. Id. at
¶ 27. The Court also noted that a claim to preserve must meet R.C. 5301.56(C)’s
requirements by: (1) stating the nature of the mineral interest claimed and any
recording information upon which the claim is based; (2) complying with R.C.
5301.52; and (c) stating that the holder does not intend to abandon, but instead to
preserve, the holder's rights in the mineral interest. Id. at ¶ 28.
       {¶31} The court then went on to hold:

              Reading the statute as a whole, we conclude that the plain
       language of the Dormant Mineral Act permits a mineral-interest holder's
       claim to preserve to serve two separate but similar functions depending
       on when it is filed for record: one as a saving event under R.C.
       5301.56(B)(3)(e) when filed in the 20 years preceding notice and
       another to preclude the mineral interest from being deemed abandoned
       under R.C. 5301.56(H)(1)(a) when filed within 60 days after service of
                                                                               -7-


      the surface owner's notice. Nothing in the act states that a claim to
      preserve filed under R.C. 5301.56(H)(1)(a) must refer to a saving event
      that occurred within the preceding 20 years. Nor do the notice
      procedures in R.C. 5301.56(H)(1)(a) require that the claim to preserve
      be itself filed in the 20 years preceding notice by the surface owner.
      The statute plainly states that such a claim can be filed within 60 days
      after notice. R.C. 5301.56(H). Thus, to preserve the mineral holder's
      interests, the plain language of R.C. 5301.56(H) permits either a claim
      to preserve the mineral interest or an affidavit that identifies a saving
      event that occurred within the 20 years preceding notice.

(Emphasis added); Id. at ¶ 30.
      {¶32} Additionally, this court recently found the same argument appellees
now make regarding R.C. 5301.56(B)(3)(e) and R.C. 5301.56(H)(1)(a) to be without
merit. Bayes v. Sylvester, 7th Dist. No. 13 MO 0020, 2017-Ohio-4033.
      {¶33} Appellees’ argument is resolved by the Ohio Supreme Court’s decision
in Dodd.     Here, appellees published a notice of abandonment on December 19,
2013. Thus, appellants had 60 days from that date to file either an affidavit or a claim
of preservation. They timely filed a claim of preservation on January 9, 2014. By
filing the claim of preservation within 60 days of publication of notice, appellants
halted the abandonment process instituted by appellees.
      {¶34} Finally, appellees assert that because the trial court based its judgment
on the 1989 ODMA, it never reached their argument regarding the absence of words
of inheritance in the mineral reservation (Count IV of their complaint). Appellees
contend that because the reservation failed to contain words of inheritance, the
mineral interest was extinguished upon the deaths of William and Elizabeth
Kindelberger and reunited with the surface estate. Therefore, they assert we should
remand this matter to the trial court to allow further proceedings on Count IV of their
complaint.
      {¶35} Prior to the enactment of G.C. 8510-1, now R.C. 5301.02, on June 13,
                                                                                -8-


1925, if a reservation in a deed was to be anything other than a life estate in the
grantor, the deed had to have contained words of inheritance. Holdren v. Mann, 7th
Dist. No. 592, 1985 WL 10385, *1 (Feb. 13, 1985). On the other hand, if the deed
contained an exception, it left title to that part of the realty excepted in the grantor
and words of inheritance were not required. Id.
      {¶36} This court previously discussed in detail the difference between a
“reservation” and an “exception” in a deed:

             A reservation by definition is a “creation of a new right or interest
      (such as an easement) by and for the grantor, in real property being
      granted to another.” Black's Law Dictionary (8th Ed.2004) 1333. An
      exception is the “retention of an existing right or interest, by and for the
      grantor, in real property being granted to another.” Id. at 604. * * *
             “Although the terms ‘excepting’ and ‘reserving’ mean different
      things, the two terms are often employed ‘indiscriminately.’ Ricelli v.
      Atkinson (1955), 99 Ohio App. 175 [58 O.O. 305, 132 N.E.2d 123]. As
      a result, the terms employed, in and of themselves, do not definitively
      establish whether an exception or a reservation has been created. * * *
      Thus, ‘whether the language creates a reservation or an exception
      depends upon the intention of the parties as evinced by a construction
      of the whole instrument in light of the circumstances of the case rather
      than upon the particular words used.’ Id. at 179 [58 O.O. 305, 132
      N.E.2d 123], citing Gill v. Fletcher (1906), 74 Ohio St. 295 [78 N.E.
      433]; Akron Cold Spring Co. v. Unknown Heirs of Ely (1923), 18 Ohio
      App. 74. ‘In case of doubt, it is said, the conveyance is to be construed
      most strongly as against the grantor, or in favor of the grantee on the
      theory, it seems, that the words used are to be regarded as the words
      of the grantor rather than of the grantee. Applying this rule, an
      exception or reservation in a conveyance is construed in favor of the
      grantee rather than of the grantor.’ Pure Oil Co. v. Kindall (1927), 116
                                                                              -9-


       Ohio St. 188, 203 [156 N.E. 119], quoting 2 Tiffany, Real Property (2
       Ed.Rev.1920), Section 437.” Campbell v. Johnson (1993), 87 Ohio
       App.3d 543, 547, 622 N.E.2d 717.

Am. Energy Corp. v. Datkuliak, 174 Ohio App.3d 398, 2007-Ohio-7199, 882 N.E.2d
463, ¶¶ 74-75 (7th Dist.).
       {¶37} In this case, the Reservation Deed stated that “the oil and gas
contained in or lying under said above described premises are excepted and
reserved.” (Emphasis added).
       {¶38} Appellees did not move for summary judgment on this count of their
complaint. Likewise, the trial court did not address this count of appellees complaint
when ruling on the summary judgment motions.          The proper remedy here is to
remand this matter to the trial court for further proceedings on Count IV of appellees’
complaint.
       {¶39} Accordingly, appellants’ sole assignment of error has merit and is
sustained.
       {¶40} For the reasons stated above, the trial court’s judgment is hereby
reversed and the matter is remanded. On remand, the trial court shall determine
whether the mineral reservation created an exception or a reservation and proceed
under the 2006 Ohio Dormant Mineral Act.

DeGenaro, J., concurs.

Robb, P.J., concurs.
