[Cite as Pike v. Piatt, 2016-Ohio-5041.]
                              STATE OF OHIO, MONROE COUNTY

                                   IN THE COURT OF APPEALS

                                           SEVENTH DISTRICT


JEFFREY D. PIKE and                              )    CASE NO. 16 MO 0007
MINDI A. PIKE TRUST, et al.                      )
                                                 )
        PLAINTIFFS-APPELLEES                     )
                                                 )
VS.                                              )    OPINION AND
                                                 )    JUDGMENT ENTRY
MAXINE PIATT, et al.                             )
                                                 )
        DEFENDANTS-APPELLANTS                    )

CHARACTER OF PROCEEDINGS:                             Civil Appeal from the Court of Common
                                                      Pleas of Monroe County, Ohio
                                                      Case No. CV 2014-153

JUDGMENT:                                             Dismissed.

APPEARANCES:
For Plaintiffs-Appellees:                             Atty. Ethan Vessels
                                                      Atty. Olivia Walker
                                                      Fields, Dehmlow & Vessels
                                                      309 Second Street
                                                      Marietta, Ohio 45750

For HG Energy, LLC:                                   Atty. Michael Buell
                                                      Buell & Sipe Co, LPA
                                                      322 Third Street
                                                      Marietta, Ohio 45750

For Defendants-Appellants:                            Atty. Matthew W. Warnock
                                                      Atty. Daniel C. Gibson
                                                      Atty. Daniel E. Gerken
                                                      Bricker & Eckler, LLP
                                                      100 South Third Street
                                                      Columbus, Ohio 43215

JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
                                                      Dated: July 11, 2016
[Cite as Pike v. Piatt, 2016-Ohio-5041.]
PER CURIAM.


        {¶1}     Defendants-Appellants Maxine Piatt, et al. appeal a determination of

the Monroe County Common Pleas Court denying their motion to vacate that court’s

decision holding their mineral interests in the subject property had vested in the

Plaintiffs-Appellees Jeffrey D. Pike and Mindi A. Pike Trust, Jeffrey Pike and Mindi

Pike, Trustees, et al. as surface owners after applying the 1989 Ohio Dormant

Mineral Act. Appellees have filed a motion to dismiss and Appellants have filed a

memorandum in opposition. Because the Civ.R. 60(B) motion to vacate filed by

Appellants below served only as an attempt to substitute for a timely appeal, this

appeal is dismissed.

        {¶2}     This case began as a quiet title action involving the Ohio Dormant

Mineral Act (“ODMA”).             Appellees own a 40-acre parcel of property in Monroe

County, Ohio. The mineral interests had been severed from the property in 1961 and

were sold to Appellants’ predecessors-in-interest. Appellees filed a quiet title action

arguing that no savings events had occurred in 20 years and that they, as the surface

owners, should now be the owners of the mineral rights to the property.

        {¶3}     Appellants argued that two savings events had occurred, that the 2006

ODMA applied rather than the 1989 ODMA, and that the 1989 ODMA is not self-

executing. The trial court granted summary judgment to Appellees on April 9, 2015,

and held that the 1989 ODMA applied, no savings events had occurred, and the

mineral interests vested in Appellees as the surface owners.

        {¶4}     Appellants did not appeal that decision. Rather, nearly a year later on

March 18, 2016, Appellants filed a Civ.R. 60(B) motion to vacate, explicitly conceding
                                                                                     -2-

that the motion was filed as result of “clerical missteps” which they argued constituted

excusable neglect resulting in the failure to file an appeal. The trial court denied

Appellants’ motion to vacate and this appeal followed. Appellees have filed a motion

to dismiss and Appellants have filed a memorandum in opposition.

      {¶5}   Appellees argue that Appellants filed their Civ.R. 60(B) motion to vacate

below as a substitute for a timely appeal of the trial court’s April 9, 2015 judgment

entry. In response, Appellants argue that they are currently appealing only the trial

court’s March 18, 2016 decision denying their motion to vacate.

      {¶6}   In order to prevail on a motion for relief from judgment under Civ.R.

60(B), the movant must demonstrate three prongs of the GTE test, which are: (1) a

meritorious claim or defense; (2) entitlement to relief under one of the five grounds

listed in the rule; and (3) the timeliness of the motion. GTE Automatic Elec., Inc. v.

ARC Indus., Inc., 47 Ohio St.2d 146, 150-151, 351 N.E.2d 113 (1976). This Court

will not disturb a trial court’s decision concerning motions filed pursuant to Civ.R.

60(B) absent an abuse of discretion. Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d

17, 20, 520 N.E.2d 564 (1988). An abuse of discretion connotes an attitude by the

court that is arbitrary, unconscionable, or unreasonable. Blakemore v. Blakemore, 5

Ohio St.3d 217, 450 N.E.2d 1140 (1983).

      {¶7}   The grounds for relief under Civ.R. 60(B) are:

      (1) mistake, inadvertence, surprise or excusable neglect; (2) newly

      discovered evidence which by due diligence could not have been

      discovered in time to move for a new trial under Rule 59(B); (3) fraud
                                                                                     -3-

      (whether      heretofore     denominated      intrinsic   or     extrinsic),

      misrepresentation or other misconduct of an adverse party; (4) the

      judgment has been satisfied, released or discharged, or a prior

      judgment upon which it is based has been reversed or otherwise

      vacated, or it is no longer equitable that the judgment should have

      prospective application; or (5) any other reason justifying relief from the

      judgment.

      {¶8}   Appellants’ March 18, 2016 motion for relief from judgment cited to

Civ.R. 60(B)(1). Counsel for Appellants claimed excusable neglect and inadvertent

mistake led to their failure to appeal the trial court’s decision. Despite acknowledging

that they had received the trial court’s decision stamped “FINAL APPEABLE

ORDER,” counsel for Appellants set forth a detailed explanation that their law firm,

through “clerical missteps,” did not subsequently appeal that decision.

      {¶9}   This Court has expressly held that “[a] Civ.R. 60(B) motion for relief

from judgment cannot be used as a substitute for a timely appeal or as a means to

extend the time for perfecting an appeal from the original judgment.” (Emphasis

deleted.) Hamilton v. Spirtos, 7th Dist. No. 01-C.A.-58, 2002-Ohio-1562, ¶ 30, citing

Key v. Mitchell, 81 Ohio St.3d 89, 90-91, 689 N.E.2d 548 (1998). Any claims or

arguments that were not raised in a timely appeal, but which could have been raised,

are precluded from being raised in a subsequent Civ.R. 60(B) motion. Id. at 91, 689

N.E.2d 548. As the Ohio Supreme Court held in State ex rel. Durkin v. Ungaro, 39

Ohio St.3d 191, 529 N.E.2d 1268 (1988):
                                                                                     -4-

      Such procedural devices cannot be used in order to obtain review of a

      judgment where a timely appeal was not filed.         If we were to hold

      differently, judgments would never be final because a party could

      indirectly gain review of a judgment from which no timely appeal was

      taken by filing a motion for reconsideration or a motion to vacate

      judgment.

Id. at 193, 529 N.E.2d 1268.

      {¶10} “When a Civ.R. 60(B) motion is used as a substitute for a timely appeal,

and when the denial of that motion is subsequently appealed, the proper response is

the dismissal of the appeal. ” Hamilton, supra, at ¶ 35, citing State ex rel. Richard v.

Cuyahoga Cty. Commrs., 89 Ohio St.3d 205, 729 N.E.2d 755 (2000); Key v. Mitchell,

81 Ohio St.3d 89, 91, 689 N.E.2d 548 (1998); and State ex rel. Durkin v. Ungaro, 39

Ohio St.3d 191, 529 N.E.2d 1268 (1988). In this instance, counsel for Appellants

acknowledged that the Civ.R. 60(B) motion was filed as a result of their failure to

timely file a notice of appeal. Accordingly, we hereby dismiss this appeal. Costs to

be taxed against Appellants.


Waite, J., concurs.

Donofrio, P.J., concurs.

DeGenaro, J., concurs.
