[Cite as Myers v. Bedway Land, 2017-Ohio-1256.]
                          STATE OF OHIO, HARRISON COUNTY

                                IN THE COURT OF APPEALS

                                      SEVENTH DISTRICT


ROBERT B. MYERS, et al.,                          )   CASE NO. 14 HA 0012
                                                  )
        PLAINTIFFS-APPELLEES,                     )
                                                  )
VS.                                               )   OPINION
                                                  )
BEDWAY LAND AND MINERALS                          )
COMPANY, et al.,                                  )
                                                  )
        DEFENDANTS-APPELLANTS.                    )


CHARACTER OF PROCEEDINGS:                             Civil Appeal from the Court of Common
                                                      Pleas of Harrison County, Ohio
                                                      Case No. CVH 2012-0120

JUDGMENT:                                             Reversed and Remanded.




JUDGES:

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

                                                      Dated: March 29, 2017
[Cite as Myers v. Bedway Land, 2017-Ohio-1256.]
APPEARANCES:

For Plaintiffs-Appellees:                         Atty. James F. Mathews
                                                  Atty. Robert J. Tscholl
                                                  Baker, Dublikar, Beck,
                                                  Wiley & Mathews
                                                  400 South Main Street
                                                  North Canton, Ohio 44720

For Defendants-Appellants:                        Atty. T. Owen Beetham
                                                  146 South Main St.
                                                  P.O. Box 128
                                                  Cadiz, Ohio 43907

                                                  Atty. Rupert Beetham
                                                  110 South Main St.
                                                  P.O. Box 262
                                                  Cadiz, Ohio 43907
[Cite as Myers v. Bedway Land, 2017-Ohio-1256.]

ROBB, P.J.


        {¶1}    Defendant-Appellant Thomas Mark Beetham appeals the April 30, 2014
decision of Harrison County Common Pleas Court granting summary judgment for
Plaintiffs-Appellees Robert B. Myers, Rhoda L. Myers, Jodee Myers, Bruce Myers,
Sherrilyn Vantassel, Albert Wright, Jr. (trustee), Scott Myers, Janet Myers, Thomas F.
Stanwick, Billie J. Stanwick, James Richardson, John P. Lamb, and Donna R. Lamb.
        {¶2}    Appellees are the surface owners and Appellant is one of the alleged
mineral holders. Appellees attempted to have the mineral rights, which previously
were severed, deemed abandoned and reunited with the surface estate. Appellees
filed suit under the 1989 version of the Ohio Dormant Mineral Act (ODMA) to
accomplish that goal. The trial court granted summary judgment for Appellees and
found under the 1989 ODMA Appellant abandoned his mineral rights interests and
those interests automatically vested with the surface owners, Appellees.
        {¶3}    For the reasons expressed below, the trial court’s decision is reversed
and remanded.
                             Statement of the Facts and Case
        {¶4}    Appellees are the surface owners of approximately 631.0384 acres in
Shortcreek Township in Harrison County, Ohio.          These land owners bought the
surface at various times between 2004 and 2011.
        {¶5}    The parties claiming to be the holders of the mineral interest rights
underlying that property can be divided into three groups: 1) Appellant; 2) Bedway
Land, Chesapeake Exploration, LLC, and Eric Petroleum Corporation; and 3)
McLaughlin Heirs. This appeal deals solely with the mineral interest rights Appellant
claims to own.        Separate appeals, 14 HA 11 and 14 HA 13 have been filed
concerning McLaughlin Heirs; and Bedway Land, Chesapeake Exploration, and Eric
Petroleum’s claimed mineral interest rights.
        {¶6}    Appellant asserts he acquired his interest in the minerals through
intestate succession from Belle McLaughlin, Samuel K. McLaughlin and Hannah
                                                                                  -2-

Lucretia McLaughlin Beetham.     The mineral interests are claimed to have been
derived from three different deeds executed in 1921.
       {¶7}   In addition to claiming his interest was acquired through intestate
succession, Appellant also claims his interest was preserved when his predecessor
in interest, Thomas Beetham, recorded a notice of preservation with the Harrison
County Recorder on October 13, 1976. Furthermore, Rupert N. Beetham filed an
affidavit preserving minerals on March 10, 2011. Exhibit J to the Third Amended
Complaint. This affidavit listed Appellant as a mineral owner. Exhibit J to the Third
Amended Complaint. Appellant filed an “Affidavit Preserving Minerals” on October
28, 2011. Exhibit L to the Third Amended Complaint.
       {¶8}   Thereafter, Appellees filed a Declaratory Judgment and Quiet Title
complaint against the McLaughlin Heirs, Appellant, Bedway Land, Chesapeake
Exploration, and Eric Petroleum.     12/17/12 Complaint; 5/16/13 First Amended
Complaint; 1/3/14 Second Amended Complaint; 1/17/14 Third Amended Complaint.
Appellees sought to have the trial court declare Appellant, McLaughlin Heirs, and
Bedway Lands’ mineral interests abandoned and reunited with the surface. The
complaint sought relief under the 1989 version of the ODMA, not under the 2006
version of the Act.
       {¶9}   Appellant filed answers to the complaints. 7/30/13 Appellant’s Answer
to First Amended Complaint; 2/3/14 Appellant’s Answer to Third Amended Complaint.
       {¶10} Following discovery, the parties filed their respective summary
judgment motions and responses to summary judgment motions. 3/11/14 Appellant’s
Motion for Summary Judgment; 3/12/14 Appellees’ Motion for Summary Judgment;
3/26/14 Appellees’ Opposition to Defendants’ Summary Judgment Motions; 3/26/14
Appellant’s Response to Appellees’ Motion for Summary Judgment; 4/2/14
Appellant’s Reply. The parties argued their position regarding the application of the
1989 ODMA to the claims at hand. Appellant also argued the 2006 ODMA applies,
not the 1989.    3/11/14 Appellant’s Motion for Summary Judgment.       He asserted
Appellees failed to follow the procedures for having minerals deemed abandoned
under the 2006 ODMA. 3/11/14 Appellant’s Motion for Summary Judgment. He
                                                                                    -3-

further argued even if Appellees attempted to follow those procedures they are now
precluded by affidavits of preservation.    3/11/14 Appellant’s Motion for Summary
Judgment.    In response to that argument Appellees conceded their claim was
premised on the 1989 ODMA. 4/2/14 Appellee’s Reply. They did not argue the
affidavits do not constitute a claim to preserve or were otherwise inadequate under
the 2006 version of the ODMA. 3/26/14 Appellee’s Memorandum in Opposition to
Defendants’ Motions for Summary Judgment. In fact, they asserted they were not
required to comply with the 2006 ODMA.           3/26/14 Appellee’s Memorandum in
Opposition to Defendants’ Motions for Summary Judgment; 4/2/14 Appellee’s Reply.
       {¶11} Upon review of the motions, the trial court granted summary judgment
for Appellees. 4/30/14 J.E. The trial court, solely applying the 1989 version of the
ODMA, found there was abandonment.           4/30/14 J.E.     The trial court concluded
Thomas Beetham’s 1976 affidavit expired on October 13, 1996, and pursuant to the
1989 ODMA, on that date the mineral interest vested in the surface owners. 4/30/14
J.E.
       {¶12} Appellant timely appealed the decision.
                       Appellant’s Fourth Assignment of Error
       “The trial court erred holding that the prior 1989 iteration of R.C. 5301.56 may
still be applied after its repeal and amendment in 2006.”
       {¶13} This assignment of error addresses the trial court’s application of the
1989 version of the ODMA and its decision to not apply the 2006 version of the
ODMA.
       {¶14} Recently, the Ohio Supreme Court in Corban explained the application
of the 1989 version of the ODMA and the application of the 2006 version of the
ODMA:

       The 1989 Dormant Mineral Act was not self-executing and did not
       automatically transfer ownership of dormant mineral rights by operation
       of law; rather, the surface holder was required to bring a quiet title
       action seeking a decree that the mineral rights had been abandoned in
       order to merge those rights into the surface estate.
                                                                                    -4-

      The 2006 amendment to the Dormant Mineral Act applies to claims
      asserted after its effective date and specifies the procedure that a
      surface holder is required to follow in order to have dormant mineral
      rights deemed abandoned and merged with the surface estate.

Corban v. Chesapeake Expl., L.L.C., __ Ohio St.3d __, 2016-Ohio-5796, __ N.E.3d
__, ¶ 40-41. See also Walker v. Shondrick-Nau, __ Ohio St.3d __, 2016-Ohio-5793,
__ N.E.3d __, ¶ 16.
      {¶15} Application of Corban to the matter at hand renders the trial court’s
grant of summary judgment for Appellees incorrect.
      {¶16} As explained above, the trial court solely relied on the 1989 version of
the ODMA to find the mineral rights were abandoned. However, the 1989 version
was not self-executing and is inapplicable to claims asserted after the 2006 ODMA’s
effective date. Corban. The claims in this case were asserted in 2012, long after the
effective date of the 2006 ODMA. Accordingly, in order to have the mineral rights
deemed abandoned and reunited with the surface, Appellees were required to follow
the procedures set forth in the 2006 ODMA.
      {¶17} The 2006 ODMA requires notice of abandonment to be provided to
mineral holders and a filing of an affidavit of abandonment in the office of the county
recorder. R.C. 5301.56(B) and (E); Albanese v. Batman, 148 Ohio St.3d 85, 2016-
Ohio-5814, ¶ 21-22 (2016) (Surface owner's service of the notice and filing of the
affidavit are required under the 2006 ODMA, R.C. 5301.56(B) and (E)). In Albanese,
because the record was devoid of compliance with those provisions, the Supreme
Court held the surface owners’ proposition of law challenging the trial and appellate
courts’ interpretation of the 1989 ODMA was moot, and the severed mineral rights
remained with the Batmans. Id., ¶ 22. Here, Appellees did cause notices of intent to
declare abandonment to be published in the local newspaper in Harrison County and
filed affidavits of abandonment.     Attachments to Defendants McLaughlin Heirs’
Response to Plaintiff’s Requests for Production of Documents. The notices were
published on April 2, 2011 and May 14, 2011; the affidavits were filed on May 27,
2011 and June 3, 2011, within the time frame required by 5301.56 (H).
                                                                                     -5-

       {¶18} Therefore, pursuant to Corban and Albanese, as there is evidence in
the record that Appellants preserved their rights under the 2006 ODMA, they are
entitled to have summary judgment granted in their favor.        Accordingly, the trial
court’s grant of summary judgment for Appellees is reversed and the matter is
remanded with instructions for the trial court to enter summary judgment for
Appellants.
                             Appellant’s First, Second, and
                              Third Assignments of Error
       “The trial court erred in holding that the prior 1989 iteration of R.C. 5301.56
provides for a ‘rolling look back period.’”
       “The trial court erred and abused its discretion by failing to consider the
requisite statutory savings event enumerated in R.C. 5301.56.”
       “The trial court erred by holding that the unidentified plaintiffs are the owners
of the unidentified portion of land overlying T. Mark Beetham’s coal and oil and gas
interests.”
       {¶19} Our resolution of the fourth assignment of error renders the arguments
raised in these assignments of error moot.
                                    Conclusion
       {¶20} The first, second, and third assignments of error are moot. The fourth
assignment of error has merit.       The trial court’s grant of summary judgment is
reversed and the matter remanded with instructions for the trial court to enter
summary judgment for Appellant.


Donofrio, J., concurs.

DeGenaro, J., concurs.
