[Cite as BK Builders, Ltd. v. E. Ohio Gas, 2014-Ohio-3850.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


BK BUILDERS, LTD., ET AL.        :                            JUDGES:
                                 :
                                 :                            Hon. W. Scott Gwin, P.J.
     Plaintiffs - Appellants     :                            Hon. Patricia A. Delaney, J.
                                 :                            Hon. Craig R. Baldwin, J.
                                 :
-vs-                             :
                                 :
THE EAST OHIO GAS COMPANY, ETC., :                            Case No. 2013CA00210
                                 :
                                 :
     Defendant - Appellee        :                            OPINION



CHARACTER OF PROCEEDING:                                      Appeal from the Stark County Court
                                                              of Common Pleas, Case No. 2012
                                                              CV 01971


JUDGMENT:                                                     Affirmed in Part; Reversed and
                                                              Remanded in Part


DATE OF JUDGMENT:                                             September 2, 2014


APPEARANCES:

For Plaintiffs-Appellants                                     For Defendant-Appellee

ROBERT J. TSCHOLL                                             MICHAEL L. SNYDER
400 South Main Street                                         JEROME W. COOK
North Canton, OH 44720                                        R. JEFFREY POLLOCK
                                                              ERIN W. CICARELLA
JAMES F. MATHEWS                                              McDonald Hopkins LLC
GREGORY A. BECK                                               600 Superior Avenue, E (Ste 2100)
Baker, Dublikar, Beck, Wiley & Mathews                        Cleveland, OH 44114
400 South Main Street
North Canton, OH 44720
Stark County, Case No. 2013CA00210                                                     2

Baldwin, J.

      {¶1}    Plaintiffs-appellants BK Builders, Ltd. and Terry R. Renner, Trustee of the

Terry R. Renner Revocable Trust appeal from the September 27, 2013 Judgment Entry

of the Stark County Court of Common Pleas granting summary judgment in favor of

defendant-appellee The East Ohio Gas Company dba Dominion East Ohio .

                                 STATEMENT OF THE CASE

      {¶2}    On June 20, 2012, appellants filed a class action complaint for declaratory

judgment, quiet title, equitable and injunctive relief against appellee The East Ohio

Company, dba Dominion East Ohio Gas. The complaint challenged the validity and

enforceability of appellee’s rights to an extensive underground natural gas storage

reservoir. Appellants sought a declaratory judgment regarding the parties’ respective

rights under oil and gas leases and supplemental gas storage agreements. Appellants,

in their complaint, alleged that they were representatives of a class of landowners

possessing oil and gas rights inland overlaying the entire natural gas storage reservoir.

Appellee filed an answer to the complaint on September 4, 2012.

      {¶3}    On December 20, 2012, appellants filed a notice of voluntary dismissal of

their class action claims. The trial court, in its December 20, 2012 Order approving the

voluntary partial dismissal, ordered that appellants file an amended complaint limited to

the individual claims of appellants BK and Terry R. Renner, Trustee or any Successor

Trustee of the Terry R. Renner Revocable Trust and that the amended complaint “shall

not assert any new or additional claims, counts or parties.”

      {¶4}    Thereafter, on January 11, 2013, appellants filed a First Amended

Complaint. Appellee filed an answer to the same on January 25, 2013.
Stark County, Case No. 2013CA00210                                                      3


        {¶5}   Both appellants and appellee filed separate Motions for Summary

Judgment on February 15, 2013 and also filed stipulations. After the briefing was

concluded, the trial court held an oral hearing on June 13, 2013.

        {¶6}   Pursuant to a Judgment Entry filed on September 27, 2013, the trial court

granted summary judgment in favor of appellee and overruled appellants’ Motion for

Summary Judgment. The trial court, in its Judgment Entry, held that appellants did not

have standing to bring their action and that, therefore, the claims that they presented in

their First Amended Complaint failed as a matter of law.

                                STATEMENT OF THE FACTS

        {¶7}   As an initial matter, it is important to outline the parties’ respective

interests.

          HOW APPELLEE OBTAINED ITS INTEREST IN THE OIL AND GAS RIGHTS

        {¶8}   In 1927, Mary A. Killinger and Libbie M. Litchtenwalter granted an oil and

gas lease to Wittmer Oil & Gas Properties of Pittsburgh, Pa. over a 160 acre tract of

land. This lease, which was known as the “Killinger Lease” was assigned by Wittmer Oil

& Gas to Penn-Ohio Gas Company by assignment recorded on January 14, 1929. In

turn, Penn-Ohio Gas Company assigned the Killinger Lease to Dominion in February of

1931.

        {¶9}   In May of 1982, Joseph A. Michaels and Greta M. Michaels granted a

Supplemental Gas Storage Agreement to Dominion relating to 66.77 acres of land that

they had acquired from North Lake Snyder that was part of the original 160 acre tract

encumbered by the Killinger Lease.
Stark County, Case No. 2013CA00210                                                        4


              SEVERANCE OF THE SURFACE AND SUBSURFACE RIGHTS WITH

                                RESPECT TO THE 160 ACRES

      {¶10}    In 1932, Mary A. Killinger and Libbie M. Litchtenwalter granted an oil and

gas deed to A.B. McFarland, trustee, conveying “one half of all the oil and gas and or

their constituents (subject only to an oil and gas lease now held by The East Ohio Gas

Company)” underlying their 160 acre tract of land. No acreage was conveyed by them.

On June 22, 1944, Libbie Houglan (formerly Litchtenwalter), who survived Mary Killinger

and received all of the remaining interest in the 160 acres, transferred the surface rights

to all 160 acres of land and the entire remaining one-half interest in all of the subsurface

oil and gas estate underlying the 160 acres, along with her rights as the lessor under

the Killinger Lease, to Earl S. Jones.

      {¶11}    Subsequently, pursuant to a warranty deed recorded on July 21, 1945,

Earl S. Jones and Mary L. Jones transferred a 66.77 acre tract of land out of the larger

160 acres to North Lake Snyder. Only the surface estate was transferred. The warranty

deed stated, in relevant part, as follows: “Reserving however, all mineral, gas and oil

right in said premises to the Grantors herein [Earl and          Mary Jones] and A. B.

McFarland and The East Ohio Gas Company, together with rights of way over said

premises as means of ingress and egress to and from oil and gas wells. Also reserving

right to Grantors herein to maintain a pipe line over the premises herein conveyed.”

      {¶12}    In July of 1945, Earl and Mary Jones conveyed 9.01 acres to Paul and

Mildred Anushock. The Jones conveyed to the Anushocks “all of my right, title and

interest in and to the gas and oil rights underlying premises conveyed to my (sic) by

Libbie Houghlan, formerly Libbie Litchtenwalter, in deed dated April 8, 1944….” Thus,
Stark County, Case No. 2013CA00210                                                      5


the Anushocks received the remaining one-half interest in all of the subsurface oil and

gas rights underlying the original 160 acres tract.

           STATEMENT OF THE FACTS RELEVANT AS TO THE TRUST’S INTEREST

      {¶13}    On October 5, 1999, the Terry R. Renner Revocable Trust (the “Trust”)

was created with Terry R. Renner as the Trustee. Via a general warranty deed recorded

on November 24, 1999, Terry R. Renner transferred four parcels of land to the Trust.

Two of the four parcels (parcels 16-12906 and 16-23044) are the real estate by which

Renner claims ownership of the subsurface oil and gas rights at issue in this matter.

The property is located within the North Canton Oil Storage Field operated by Dominion.

      {¶14}    On October 9, 2012, Terry R. Renner and his wife, Tammy L. Renner,

created the Terry R. Renner and Tammy L. Renner Revocable Trust (the “Tammy

Trust”) and were designated the settlers and trustees of such trust.       Pursuant to a

warranty deed recorded on October 17, 2012, the Trust conveyed all right, title and

interest in all of the real estate that it owned to the Tammy Trust, including the above

parcels.

                  STATEMENT OF FACTS RELEVANT TO BK’S INTEREST

      {¶15}    On January 3, 1947, North Lake Snyder, who had acquired the surface

estate to 66.77 acres from Earl S. Jones and Mary L. Jones, conveyed the 66.77

surface estate to Joseph and Greta Michaels via warranty deed. The warranty deed

excepted “all mineral, gas and oil rights and subject to the right to maintain a pipe line

over said premises, and a right of way as means of ingress and egress to and from oil

or gas wells, which has heretofore been conveyed and granted as appears of record.”

Thereafter, in 2003, Michael E. Michaels, Successor Trustee under the Joseph and
Stark County, Case No. 2013CA00210                                                    6


Greta Michaels Living Trust dated July 15, 1992, conveyed 26.691 acres to Jonas E.

Troyer and conveyed 34.750 acres to Kuntz Properties, Inc. via separate Deeds of

Executor. An additional 5.299 acres was conveyed to Riley/Schley.

       {¶16}   The deeds stated, in relevant part, as follows:

       {¶17}   “SUBJECT TO:       Gas Storage Agreement to East Ohio Gas Company

recorded in Volume 23, Page 862, Reservation of all mineral, gas and oil rights and

right to maintain pipe line and ingress and egress to wells recorded in Volume 1500,

page 170 and Volume 1623, page 486; Oil and Gas Lease to Whittmer Oil and Gas

Properties recorded in Lease Volume 36, Page 166 and re-recorded in Lease Volume

44, Page 611, Oil and Gas Deed to A.B. McFarland recorded in Volume 1084, page 143

[McFarland Deed]; Easement for Highway Purposes to The Board of Stark County

Commissioner recorded in Volume 1241, page 469; Right of Way to The East Ohio Gas

Company recorded in Volume 1013, page 264; Reservation of Oil and Gas recorded in

Deed Volume 1447, page 163; of the Stark County Records.”

       {¶18}   Pursuant to a warranty deed recorded on August 26, 2003, Jonas E.

Troyer conveyed 26.691 acres to Kuntz Properties, Inc. The warranty deed contained

the same language as the above Deeds of Executor. Finally, Kuntz transferred title to

its total 61.441 acres to its affiliate, appellant BK in 2004.

       {¶19}   Appellants now appeal from the trial court’s September 27, 2013

Judgment Entry, raising the following assignments of error on appeal:

       {¶20}   THE TRIAL COURT ERROR (SIC) WHEN IT GRANTED SUMMARY

JUDGMENT IN FAVOR OF THE APPELLEE, UPON THE ERRONEOUS PREMISE

THAT     THE      APPELLANT        RENNER        LACKED          STANDING   TO   PURSUE
Stark County, Case No. 2013CA00210                                                   7


DECLARATORY RELIEF REGARDING INSTRUMENTS AFFECTING APPELLANT’S

PROPERTIES.

     {¶21}   THE TRIAL COURT ERROR (SIC) WHEN IT GRANTED SUMMARY

JUDGMENT IN FAVOR OF THE APPELLEE, UPON THE ERRONEOUS PREMISE

THAT THE APPELLANT BK BUILDERS LACKED STANDING TO PURSUE

DECLARATORY RELIEF REGARDING INSTRUMENTS AFFECTING APPELLANT’S

PROPERTIES.

                                 STANDARD OF REVIEW

     {¶22}   Summary judgment motions are to be resolved in light of the dictates of

Civ.R. 56, which was reaffirmed by the Ohio Supreme Court in State ex rel. Zimmerman

v. Tompkins, 75 Ohio St .3d 447, 448, 1996–Ohio-211, 663 N.E.2d 639:

     {¶23}   “Civ.R. 56(C) provides that before summary judgment may be granted, it

must be determined that (1) no genuine issue as to any material fact remains to be

litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it

appears from the evidence that reasonable minds can come to but one conclusion, and

viewing such evidence most strongly in favor of the nonmoving party, that conclusion is

adverse to the party against whom the motion for summary judgment is made. State ex

rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 1997-Ohio-172, 628 N.E.2d

1377, citing Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 472, 364 N.E.2d

267, 274 (1977).

     {¶24}   As an appellate court reviewing summary judgment motions, we must

stand in the shoes of the trial court and review summary judgment motions on the same
Stark County, Case No. 2013CA00210                                                             8

standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio

St.3d 35, 36, 56 N.E.2d 212 (1987).

         {¶25}   It is pursuant to this standard that we review appellants’ assignments of

error.

                                                    I

         {¶26}   Appellants, in their first assignment of error, argue that the trial court erred

in granting summary judgment in favor of appellee on the basis that appellant Renner

lacked standing. The trial court, in its Judgment Entry, found that appellant Renner “no

longer owns the property at interest and, as such, …. does not have standing to bring

this action.”

         {¶27}   Whether a party has established standing to bring an action before the

court is a question of law, which we review de novo. Cuyahoga Cty. Bd. of Commrs. v.

Ohio, 112 Ohio St.3d 59, 2006–Ohio–6499, 858 N.E.2d 330, ¶ 23.

         {¶28}   Standing is defined as “[a] party's right to make a legal claim or seek

judicial enforcement of a duty or right.” Ohio Pyro, Inc. v. Ohio Dept. of Commerce, 115

Ohio St.3d 375, 2007-Ohio- 5024, 875 N.E.2d 550 at paragraph 27, quoting Black's Law

Dictionary (8th Ed.2004). Standing depends on “whether the party has alleged such a

personal stake in the outcome of the controversy* * * as to ensure that the dispute

sought to be adjudicated will be presented in an adversary context and in a form

historically viewed as capable of judicial resolution.” Id., quoting State ex rel. Dallman v.

Franklin Cty. Court of Common Pleas, 35 Ohio St.2d 176, 178–179, 298 N.E.2d 515

(1973). The Ohio Supreme Court has recently explained that standing is required to

invoke the jurisdiction of the trial court, and that, therefore, it is determined as of the
Stark County, Case No. 2013CA00210                                                        9

filing of the complaint. Fed. Home Loan Mortgage Corp. v. Schwartzwald, 134 Ohio

St.3d 13, 2012–Ohio–5017, 979 N.E.2d 1214, ¶ 3. The Court in Schwartzwald also

found that a lack of standing cannot be cured by “post-filing events” that supply

standing. Id. at ¶ 26. Moreover, a lack of standing “cannot be cured by receipt of an

assignment of the claim or by substitution of the real party in interest.” Id. at ¶ 41.

      {¶29}   In the case sub judice, there is no dispute that appellant Renner had

standing at the time the original complaint was filed on June 20, 2012. As is stated

above, on October 5, 1999, the Terry R. Renner Revocable Trust (the “Trust”) was

created with Terry R. Renner as the Trustee. In 1999, Terry R. Renner transferred four

parcels of land to the Trust. Two of the four parcels (parcels 16-12906 and 16-23044)

are the real estate by which Renner claims ownership of the subsurface oil and gas

rights at issue in this matter.

      {¶30}   However, on October 17, 2012, appellant Renner conveyed all right, title

and interest in all of the real estate that the Trust owned to the Tammy Trust, including

the above two parcels. Thereafter, on January 11, 2013, after such transfer, appellants

BK Builders, Ltd. and Terry R. Renner, Trustee of the Terry R. Renner Revocable Trust

filed a First Amended Complaint. At the time the amended complaint was filed, the Trust

did not own the parcels at issue.

      {¶31}   We note that an amended complaint substitutes for or replaces the original

pleading. Steiner v. Steiner, 85 Ohio App.3d 513, 519, 620 N.E.2d 152 (4th Dist. 1993).

An amended complaint “takes the place of the original, which is then totally abandoned.”

Harris v. Ohio Edison Co., 7th Dist. Mahoning No. 91 C.A. 108, 1992 WL 188511 (Aug.

3, 1992).
Stark County, Case No. 2013CA00210                                                                             10


       {¶32}     We concur with the trial court that appellant Renner lacked standing at the

time the First Amended Complaint was filed on January 11, 2013 because, at such time,

the Trust no longer owned the parcels. Rather, at such time, the Tammy Trust, which

was not a successor, was the owner of the parcels. Appellants made no effort to

substitute the Tammy Trust for appellant Trust as a new party plaintiff.1

       {¶33}     Appellants’ first assignment of error is, therefore, overruled.

                                                            II

       {¶34}     Appellants, in their second assignment of error, argue that the trial court

erred when it granted summary judgment in favor of appellee on the basis that appellant

BK Builders lacked standing. We agree.

       {¶35}     As an initial matter, we note that we agree with appellant BK that there

was no necessity to plead the Marketable Title Act as a claim in this case. Ohio's

Marketable Title Act, R.C. 5301.47 to 5301.56, became law nearly fifty years ago as a

means of simplifying land title transactions by allowing persons to rely on a record chain

of title as set forth in the pertinent statutes and by eliminating “ancient interests” which

operate to cloud otherwise clear titles. See Semachko v. Hopko, 35 Ohio App.2d 205,

209, 301 N.E.2d 560 (8th Dist. 1973); Carlson v. Koch, 7th Dist. Nos. 36497, 36498,

1978 WL 217670 (Jan. 19, 1978). The Act functions as “a 40-year statute of limitations

for bringing claims against a title of record.” Collins v. Moran, Mahoning App.No. 02 CA

218, 2004-Ohio-1381, ¶ 20. R.C. 5301.55 states that the Act “shall be liberally

construed to effect the legislative purpose of simplifying and facilitating land title

transactions * * *.”

1
 Appellee argues that any request to substitute the Tammy Trust as a new party plaintiff would have been
properly denied by the trial court because the trial court’s December 20, 2012 Order prohibited the addition of any
parties. Based on our resolution of the first assignment of error, we do not need to reach such issue.
Stark County, Case No. 2013CA00210                                                           11


      {¶36}    As noted by appellant BK, “BK Builders never asserted that it sought any

declaration under the Marketable Title Act as to the appellee Dominion. Rather, BK

Builders only relied upon its Marketable Record Title to demonstrate its standing, or

stake in the outcome, of this declaratory judgment action.” Appellant BK raised the

Marketable Title Act in its response to appellee’s Motion for Summary Judgment and,

therefore, the matter was properly before the trial court.

      {¶37}    Appellant BK, in its complaint and amended complaint, sought declaratory

relief. It asserted that it was the title owner of portions of specified real estate and that it

“possess[ed] correlative right to recover and receive the oil and gas in and under their

tracts of land.”

      {¶38}    “To succeed in establishing standing, plaintiffs must show that they

suffered (1) an injury that is (2) fairly traceable to the defendant's allegedly unlawful

conduct, and (3) likely to be redressed by the requested relief.” Moore v. City of

Middletown, 133 Ohio St.3d 55, 2012–Ohio–3897, 975 N.E.2d 977, ¶ 22, citing Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560–561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

      {¶39}    In the recent case of Rhea v. Federer, 2nd Dist Clark No. 2013–CA–80,

2014 -Ohio- 1979, the Court stated, in relevant part, as follows: “ The language of R.C.

2721.03 [the declaratory relief statute] is broad…

      {¶40}    “In Moore v. City of Middletown, 133 Ohio St.3d 55, 2012–Ohio–3897,

975 N.E.2d 977, the Supreme Court of Ohio addressed a similar contention. The Court

stated, at ¶ 46–48:…

      {¶41}    ‘[J]udges are cautioned to remember, standing is not a technical rule

intended to keep aggrieved parties out of court. “ ‘Rather, it is a practical concept
Stark County, Case No. 2013CA00210                                                       12


designed to insure that courts and parties are not vexed by suits brought to vindicate

nonjusticiable interests and that judicial decisions which may affect the rights of others

are forged in hot controversy, with each view fairly and vigorously represented.’

(Citations omitted).

      {¶42}   “... Although it is true that R.C. Chapter 2721 is the legislative source of a

cause of action for declaratory relief, we do not necessarily agree that the statute does

not confer standing. Indeed, standing can be created by legislation. Middletown v.

Ferguson, 25 Ohio St.3d 71, 75, 495 N.E.2d 380 (1986). But aside from whether the

statute itself confers standing, our cases make clear that we are generous in

considering whether a party has standing.” Id at paragraphs 17- 18.

      {¶43}   Appellee, in its Motion for Summary Judgment, argued that appellant BK

lacked standing because it did not have an ownership interest in subsurface oil and gas

underlying the parcels that are at issue in this case. Appellee argued that there was a

separation of the surface state from the subsurface mineral, oil and gas rights. Appellee

noted that appellant BK’s chain of title was rooted in the warranty deed recorded on July

21, 1945 that conveyed 66.77 acres from Earl Jones to North Lake Snyder and that

such deed stated, in relevant part, as follows: “Reserving however, all mineral, gas and

oil right in said premised to the Grantors herein [Earl and       Mary Jones] and A. B.

McFarland and The East Ohio Gas Company, together with rights of way over said

premises as means of ingress and egress to and from oil and gas wells. Also reserving

right to Grantors herein to maintain a pipe line over the premised herein conveyed.”

      {¶44}   Appellee, in its motion, also noted that the later transfer, on January 3,

1947, of the 66.77 surface estate from North Lake Snyder to Joseph and Greta
Stark County, Case No. 2013CA00210                                                       13


Michaels specifically excepted from the conveyance “all mineral, gas and oil rights and

subject to the right to maintain a pipe line over said premises, and a right of way as

means of ingress and egress to and from oil or gas wells, which has heretofore been

conveyed and grated as appears of record.” According to appellee in its motion, “[a]fter

this transfer, all subsequent transfers that resulted in 61.441 of these 66.77 acres being

owned by Kuntz Properties, Inc. contained identical and exacting recitation of the

historical mineral, oil and gas reservations that reduced the 66.77 acres to a surface

estate.”

      {¶45}   In turn, in appellants’ response to appellee’s Motion for Summary

Judgment, appellant BK argued that it had acquired its interests in the real property

through Joseph A. Michaels and Greta M. Michaels and that “the previously severed oil

and gas interest referenced by [appellee] (created in 1932 and 1945), merged with the

title held by the Michaels, pursuant to the Ohio Marketable Title Act.”

      {¶46}   The parties, in support of their arguments, cite to numerous documents

and different statutes and/or versions of statutes in support of their arguments that the

Marketable Title Act either does, or does not, create an ownership interest in the

subsurface rights with respect to appellant BK. The trial court, and also appellee,

referenced R.C. 5301.56 (the Dormant Mineral Act), which concerns abandonment of

mineral interests. In turn, appellant BK argued in its brief that it “did not assert a basis

for standing under the Dormant Mineral Act.”         Rather, appellant BK cited to R.C.

5301.47 through 5301-50 in arguing that the Michaels’ marketable record title operated

to “extinguish” the previously severed oil and gas interests.
Stark County, Case No. 2013CA00210                                                       14


      {¶47}   Based on the state of the record before this Court, we find that there is a

disputed issue as to whether or not the Marketable Act created an ownership interest in

appellant BK with respect to the subsurface rights. We find it necessary to remand this

matter to the trial court to determine which provisions in the Marketable Title Act, if any,

apply.

      {¶48}   Based on the foregoing, we find that the trial court erred in granting

summary judgment in favor of appellee with respect to appellant BK.

      {¶49}   Appellants’ second assignment of error is, therefore, sustained.
Stark County, Case No. 2013CA00210                                                 15


      {¶50}   Accordingly, the judgment of the Stark County Court of Common Pleas is

affirmed in part and reversed in part. This matter is remanded in part for proceedings

consistent with this Opinion.


By: Baldwin, J.

Gwin, P.J. and

Delaney, J. concur.
