[Cite as Richards v. Hilligas, 2017-Ohio-4277.]
                            STATE OF OHIO, HARRISON COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


VIKKI RICHARDS, et al.                            )   CASE NO. 14 HA 0002
                                                  )
        PLAINTIFFS-APPELLEES                      )
                                                  )
VS.                                               )   OPINION
                                                  )
RALPH EUGENE HILLIGAS, et al.                     )
                                                  )
        DEFENDANTS-APPELLEES                      )

CHARACTER OF PROCEEDINGS:                             Civil Appeal from the Court of Common
                                                      Pleas of Harrison County, Ohio
                                                      Case No. CVH 2011-0105

JUDGMENT:                                             Reversed and Remanded.




JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
                                                      Dated: June 12, 2017
[Cite as Richards v. Hilligas, 2017-Ohio-4277.]
APPEARANCES:

For Lower Valley Farm, LLC:                       Atty. David E. Butz
                                                  Atty. Gregory W. Watts
                                                  Atty. Matthew W. Onest
                                                  Krugliak, Wilkins, Griffiths
                                                    & Dougherty Co., L.P.A.
                                                  4775 Munson Street, N.W.
                                                  P.O. Box 36963
                                                  Canton, Ohio 44735-6963


For Vikki Richards, et al.:                       Atty. Peter A. Lusenhop
                                                  Atty. Gregory D. Russell
                                                  Vorys, Sater, Seymour & Pease, LLP
                                                  52 East Gay Street
                                                  P.O. Box 1008
                                                  Columbus, Ohio 43216-1008

                                                  Atty. Steven A. Chang
                                                  Vorys, Sater, Seymour & Pease, LLP
                                                  106 S. Main Street, Suite 1100
                                                  Akron, Ohio 44308

For Ralph Hilligas, et al.:                       Atty. Mark Beetham
                                                  146 South Main Street,
                                                  P.O. Box 128
                                                  Cadiz, Ohio 43907-0128
[Cite as Richards v. Hilligas, 2017-Ohio-4277.]
WAITE, J.


        {¶1}     Appellant Lower Valley Farm, L.L.C. (“Lower Valley”) appeals the

January 3, 2014 decision of the Harrison County Common Pleas Court to deny its

motion to intervene. The motion to intervene stems from an action regarding the

ownership of mineral interests between Co-Appellees Vikki Richards and Timothy

Maloney and Co-Appellees Ralph Eugene Hilligas, Beth Newberry Backus, Kay J.

Schlafer, Jill D. Dickerson, Wilma Matusik, Church Builders Plus Inc., Anderson

University, Church of God Ministries Inc., and Park Place Church of God Inc.

(collectively referred to as “Appellees”). Lower Valley argues that it should have

been permitted to intervene because it holds an interest in the minerals and no other

party to the underlying action can adequately protect that interest. For the reasons

that follow, Lower Valley’s arguments have merit and the judgment of the trial court is

reversed. The matter is remanded to the trial court with instructions to grant Lower

Valley’s motion to intervene in the underlying action.

                                  Factual and Procedural History

        {¶2}     On February 1, 1923, George A. and Lorain Hilligas conveyed the

surface rights to property located in Shortcreek Township, Harrison County to Kehota

Mining Co. This appeal concerns 83 acres of that property. The Hilligases reserved

the mineral interests in the land through the following language:

        EXCEPTING AND RESERVING unto said Grantors, the heirs and

        assigns, all the oil and gas within and under said above described

        premises with the right of removing same, together with all rights and
                                                                                      -2-

       privileges necessary for drilling and operating on said premises for the

       purpose of removing and marketing said oil and gas.

(2/1/1923 Deed.) The deed was recorded on May 29, 1923. Sometime thereafter,

Lorain Hilligas died and her one-half interest transferred as follows: one-third to her

surviving husband, George; one-third to her son, Paul Hilligas; and one-third to her

daughter, Agnes Newberry.

       {¶3}   On August 31, 1967, Paul died. His interest was transferred to his

surviving spouse, Co-Appellee Wilma Matusik. Agnes died sometime thereafter and

her interest was transferred to her husband, Gene A. Newberry. On Gene’s death,

the interest was transferred to the Hilligas heirs: Jill D. Dickerson, Kay J. Schlafer,

Beth Newberry Backus, Church Builders Plus, Inc., Anderson University, Church of

God Ministries, Inc., and Park Place Church of God, Inc. Each heir except for the

religious institutions received a one-eighth interest. The various religious institutions

split a one-eighth interest.

       {¶4}   On July 25, 2001, Edward L. Seleski obtained the surface rights to the

property. This deed was recorded on August 20, 2001. On August 6, 2001, the

Estate of Edward Seleski transferred the surface rights to Michael H. and Cheryl A.

Wilt. Their deed was recorded on August 20, 2001. On December 11, 2001, the

Estate of Edward Seleski recorded a deed which transferred a one-half interest in the

minerals to a group of Seleski heirs. On the same date, the estate conveyed a one-

half interest to the remaining Seleski heirs in a separate deed.        The Wilts later

conveyed the property to Co-Appellees Richards and Maloney through three
                                                                                        -3-

separate deeds recorded May 26, 2006, July 20, 2005, and May 24, 2004. The

deeds included the Hilligas reservation and an apparent reservation by the Seleski

heirs.

         {¶5}   On October 19, 2011, Richards and Maloney filed a complaint seeking

quiet title or, alternatively, partition against the Hilligas heirs (Ralph Eugene Hilligas,

Beth Newberry Backus, Kay Schlafer, and Jill Dickerson).            The trial court later

ordered Richards and Maloney to add the following Hilligas heirs as codefendants:

Wilma Matusik, Church Builders Plus Inc., Anderson University, Church of God

Ministries Inc., and Park Place Church of God. On June 14, 2012, Richards and

Maloney filed an amended complaint to include these parties as codefendants. On

August 16, 2012, the Hilligas heirs filed an answer and a counterclaim. The parties

completed discovery.

         {¶6}   On August 21, 2013, the Seleski heirs transferred their interests to

Lower Valley, an LLC comprised of Seleski heirs. On October 9, 2013, one month

before the dispositive motion deadline, Lower Valley filed a motion to intervene

pursuant to Civ.R. 24. Lower Valley argued that the Hilligas heirs abandoned their

interests pursuant to the 1989 DMA and that those interests vested in Edward

Seleski. As such, the LLC is the actual mineral interest holder, because its mineral

interests were acquired from the Estate of Edward L. Seleski.             After holding a

hearing, the trial court denied Lower Valley’s motion to intervene. This timely appeal

followed.

                                 Final Appealable Order
                                                                                    -4-

      {¶7}   Appellees argue that the trial court’s denial of Lower Valley’s motion to

intervene is not a final appealable order. The Ohio Supreme Court has held that the

denial of a motion to intervene does not always constitute a final appealable order.

Gehm v. Timberline Post & Frame, 112 Ohio St.3d 514, 2007-Ohio-607, 861 N.E.2d

519. However, the denial of intervention in a special proceeding may be a final

appealable order when the court’s decision in the pending matter would have a

considerable effect on the property rights of the proposed intervenor. Southside

Community Dev. Corp. v. Levin, 116 Ohio St.3d 1209, 2007-Ohio-6665, 878 N.E.3d

1048, ¶ 6, citing Morris v. Investment Life Ins. Co., 6 Ohio St.2d 185, 187, 217 N.E.2d

202 (1966); Gautam Sansai Environmental Technologies, L.L.C., 8th Dist. No. 95459,

2011-Ohio-223, citing Morris, supra, at 187.

      {¶8}   Here, it is apparent that the trial court’s decision would have a

considerable effect on Lower Valley’s asserted property rights. As such, the trial

court’s decision refusing to allow intervention constitutes a final appealable order.

Appellees contend that Gehm requires a contrary decision.         However, the Levin

Court reiterated that even in Gehm the Court determined that a trial court’s decision

regarding a request to intervene is final and appealable when the underlying matter

cannot be litigated in a subsequent action. Levin at ¶ 8. According to the parties,

Lower Valley attempted to file a subsequent action to protect its rights in the matter

and Appellees raised res judicata as a defense to that action. Because res judicata

appears to preclude Lower Valley from proceeding in a subsequent action, Lower

Valley would be left without any means of protecting its alleged property interests.
                                                                                    -5-

Accordingly, the trial court’s denial of Lower Valley’s motion to intervene here is a

final appealable order.

                                 Standard of Review

      {¶9}   The parties disagree on the applicable standard of review. While Lower

Valley admits that the denial of a motion to intervene is generally subject to an abuse

of discretion review, it argues that the standard of review is de novo when the

proposed intervenor has a vested interest in the relevant property.       Conversely,

Appellees contend that the denial of a motion to intervene is always reviewed for an

abuse of discretion.

      {¶10} We have consistently held that a trial court’s denial of a motion to

intervene is reviewed for an abuse of discretion. See Yemma v. Reed, 7th Dist. No.

16 MA 0015, 2017-Ohio-1015, ¶ 25; Wells Fargo Bank, N.A. v. Brooks, 7th Dist. No.

15 CO 0010, 2016-Ohio-8561, ¶ 15; Yeater v. Bob Betson Enterprises, 7th Dist. No.

04-BE-46, 2005-Ohio-6943, ¶ 12.      These decisions are in accord with the Ohio

Supreme Court’s Opinion in State ex rel. N.G. v. Cuyahoga Cty. Court of Common

Pleas, Juvenile, Div., 147 Ohio St.3d 432, 2016-Ohio-1519, 67 N.E.3d 728.           An

abuse of discretion is more than an error in judgment, it implies that the court's

attitude is unreasonable, arbitrary or unconscionable. State v. Adams, 62 Ohio St.2d

151, 157, 404 N.E.2d 144 (1980).

                             ASSIGNMENT OF ERROR

      THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING

      LOWER VALLEY FARM, LLC'S MOTION TO INTERVENE.
                                                                                        -6-

       {¶11} Pursuant to Civ.R. 24(A), a party can intervene as a matter of right (1)

upon timely application, (2) if the applicant claims an interest relating to the property

or transaction that is the subject of the action, (3) the applicant is so situated that the

disposition of the action may as a practical matter impair or impede the applicant's

ability to protect that interest, and (4) the applicant's interest is not adequately

represented by existing parties.     Civ.R. 24 is to be liberally construed to permit

intervention. Brooks, supra, at ¶ 14, citing State ex rel. Merrill v. ODNR, 130 Ohio

St.3d 30, 2011-Ohio-4612, 955 N.E.2d 935, ¶ 41.

       {¶12} Lower Valley acknowledges in an affidavit filed in this matter that some

of its members knew of the pending underlying action, but planned to “sit back and

wait to see what happens.” (11/14/13 Richards’ Affidavit.) Lower Valley explains that

these members were not represented by counsel at that time and, as laypeople, did

not understand the implications of postponing a decision to join the action.

Regardless, Lower Valley argues that Appellees had a duty to include all of its

members as codefendants and failed to do so, even though Appellees knew at the

time they filed their underlying lawsuit that Lower Valley claimed an interest in the

minerals and so, had a right to be made a party to the case.

       {¶13} When evaluating the timeliness of a motion to intervene, a court may

consider the following factors:

       (1) the stage of the case; (2) the reason behind intervention; (3) the

       amount of time before the application during which the movant knew or

       reasonably should have known of his interest in the case; (4) the
                                                                                        -7-

       prejudice to the original parties due to the movant's failure to apply

       promptly for intervention after he knew or reasonably should have

       known of his interest in the case; and (5) the existence of unusual

       circumstances weighing in favor or against intervention.

Yemma at ¶ 26, citing Triax Co. v. TRW, Inc., 724 F.2d 1224, 1228 (6th Cir.1984).

       {¶14} As to the stage of the case at bar, while the parties had completed

discovery at the time the motion was filed, the dispositive motion deadline had not yet

passed and a trial date had not yet been set. Further, this record reflects that the

dispositive motion deadline was later extended on two occasions pursuant to an

agreement by the parties. As such, Lower Valley’s intervention at this stage of the

case would likely not have prejudiced the existing parties.

       {¶15} Lower Valley’s reason for intervention is compelling.          Lower Valley

believes that it owns the mineral interests at issue in the underlying case and, as later

discussed, would be unable to protect its interest if not permitted to intervene. We

note that the Richards/Maloney plaintiffs knew of Lower Valley’s interests in the

underlying case, yet failed to name Appellant a party defendant in the matter.

       {¶16} Although there is some evidence that at least two members of Lower

Valley were aware the underlying action had been filed and failed to promptly

intervene, these individuals are laypeople who did not understand that they could

lose their right to protect their asserted interest if they waited too long to seek to join

the lawsuit. Again, there was no prejudice to Appellees. In fact, resolution of Lower

Valley’s claims may benefit the existing parties.        If Lower Valley is allowed to
                                                                                         -8-

intervene in this suit, it may serve to prevent or end other, similar lawsuits and thus,

promote judicial economy. Under these facts, Lower Valley’s motion to intervene

was timely.

       {¶17} As to the remaining Civ.R. 24 factors, Lower Valley argues that it has

an interest in the minerals involved in the underlying matter and it will lose the ability

to protect this interest if it is unable to intervene. Lower Valley asserts that although it

would present the same 1989 DMA arguments as Richards/Maloney, its interests are

adverse to those of Richards/Maloney because Richards/Maloney have argued that if

the 1989 DMA applies, they would own the mineral interests in question, not Lower

Valley. This adverse nature of interest may explain why Richards/Maloney failed to

name Appellant as a party defendant in the underlying action at the outset. We also

note, here, that the Ohio Supreme Court’s recent decision in Corban v. Chesapeake

Exploration L.L.C., __ Ohio St.3d __, 2016-Ohio-5796, __ N.E.3d __ may put a

decisive end to all of these claims. Regardless, the parties have a right to their day in

court to be heard on the issue.

       {¶18} Lower Valley acknowledges that the trial court apparently suggested

that it could file a subsequent action to protect its interests. However, it claims that

when it did file such action, Appellees raised as a defense the issue that Lower

Valley was barred by res judicata from asserting those claims in the later suit.

Appellees admitted at oral argument that they raised res judicata in the subsequent

trial court action. If res judicata applies, which it appears that it may, Lower Valley

would be left with no way to protect its asserted interest, here. As such, disposition
                                                                                     -9-

of this action without allowing Lower Valley to intervene would clearly impede its

ability to protect those interests and it was an abuse of discretion not to allow the

intervention. Accordingly, Lower Valley’s sole assignment of error has merit and the

judgment of the trial court is reversed. Lower Valley’s motion to intervene in the

underlying action should be granted.

                                       Conclusion

      {¶19} Lower Valley argues that the trial court improperly denied its motion to

intervene in the underlying action. As Appellees have raised res judicata to bar

Appellant’s claims in a subsequent action, the trial court’s denial of Lower Valley’s

motion to intervene would leave Lower Valley unable to protect its claimed property

interests. Accordingly, Lower Valley’s argument has merit and the judgment of the

trial court is reversed. This matter is remanded to the trial court with instructions to

grant Lower Valley’s motion to intervene in the underlying suit.


Donofrio, J., concurs.

DeGenaro, J., concurs.
