[Cite as Schucht v. Bedway Land, 2017-Ohio-1254.]



                          STATE OF OHIO, HARRISON COUNTY

                                IN THE COURT OF APPEALS

                                      SEVENTH DISTRICT


CHARLES J. SCHUCHT, et al.,                         )   CASE NO. 14 HA 0010
                                                    )
        PLAINTIFFS-APPELLANTS/                      )
        CROSS-APPELLEES                             )
                                                    )
VS.                                                 )   OPINION
                                                    )
BEDWAY LAND AND MINERALS                            )
COMPANY, et al.,                                    )
                                                    )
        DEFENDANTS-APPELLEES/                       )
        CROSS-APPELLANTS.                           )

CHARACTER OF PROCEEDINGS:                               Civil Appeal from the Court of Common
                                                        Pleas of Harrison County, Ohio
                                                        Case No. CVH 2012-0010

JUDGMENT:                                               Affirmed in part, Reversed in part and
                                                        Remanded.




JUDGES:

Hon. Carol Ann Robb
Hon. Gene Donofrio
Hon. Mary DeGenaro
                                                        Dated: March 30, 2017
[Cite as Schucht v. Bedway Land, 2017-Ohio-1254.]
APPEARANCES:

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

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

                                                    Atty. Thomas A. Hill
                                                    6075 Silica Rd., Suite A
                                                    Austintown, Ohio 44515

                                                    Atty. Clay K. Keller
                                                    Atty. J. Alex Quay
                                                    Jackson Kelly PLLC
                                                    17 South Main St., Suite 101B
                                                    Akron, Ohio 44308

                                                    Atty. Michael Altvater
                                                    Babst, Calland, Clements & Zomnir, P.C.
                                                    One Cascade Plaza, Suite 1010
                                                    Akron, Ohio 44308

                                                    Atty. Matthew L. Fornshell
                                                    Atty. Nicole R. Woods
                                                    Ice Miller, LLP
                                                    250 West Street
                                                    Columbus, Ohio 43215
[Cite as Schucht v. Bedway Land, 2017-Ohio-1254.]

ROBB, P.J.


        {¶1}    Plaintiffs-Appellants/Cross-Appellees Charles J. Schucht, Teresa E.
Schucht, and Wilma Schucht appeal the decision of Harrison County Common Pleas
Court granting summary judgment in favor of Defendants-Appellees/Cross-Appellants
Bedway Land and Minerals Company (“Bedway Land”), Eric Petroleum Corp. (“Eric
Petroleum”), and Chesapeake Exploration, LLC (“Chesapeake”). Appellees/Cross-
Appellants have filed separate cross assignments of error.
        {¶2}    In this case, Appellants/Cross-Appellees are the surface owners and
Appellees/Cross-Appellants are the alleged mineral holders.              Appellants/Cross-
Appellees attempted to have the mineral rights, which previously were severed,
deemed abandoned and reunited with the surface estate.                   Appellants/Cross-
Appellees attempted to solely use the 1989 version of the Ohio Dormant Mineral Act
(ODMA) to accomplish that goal.              Appellants/Cross-Appellees admittedly did not
proceed under the 2006 version of the ODMA.
        {¶3}    For the reasons expressed below, the trial court’s decision is affirmed in
part, reversed in part, and remanded.
                                Statement of Case and Facts
        {¶4}    Appellants/Cross-Appellees own approximately 526.7885 acres in
Shortcreek Township, Harrison County, Ohio. They acquired the surface estate in
the mid-1990s.
        {¶5}    The mineral rights were severed from the surface estate. Bedway Land
acquired the mineral rights underlying Appellants/Cross-Appellees’ property in 1984
by a quitclaim deed recorded on December 28, 1984. This interest was acquired
from William W. Wehr who purchased the mineral rights in 1966 from Kehota Mining
Company.
        {¶6}    Chesapeake and Eric Petroleum claim to hold an interest in the mineral
rights through an oil and gas lease.
        {¶7}    In an attempt to have the mineral rights reunited with the surface estate,
Appellants filed a declaratory judgment and quiet title complaint seeking a declaration
from the trial court that under the 1989 version of the ODMA the mineral rights in the
                                                                                    -2-

property are abandoned and, as such, vested back to the surface. 2/9/12 Complaint;
1/3/14 First Amended Complaint; 1/17/14 Second Amended Complaint.
      {¶8}   All defendants filed answers. 4/17/12 Chesapeake’s Answer; 4/17/12
Eric Petroleum’s Answer; 8/23/13 Bedway Land’s Answer; 12/12/13 Eric Petroleum’s
Amended Answer; 1/17/14 Bedway Land’s Answer to Amended Complaint; 1/28/14
Bedway Land’s Answer to Second Amended Complaint; 2/4/14 Chesapeake’s
Answer to Second Amended Complaint; 2/5/14 Eric Petroleum’s Answer to Second
Amended Complaint.
      {¶9}   All parties filed summary judgment motions.     1/2/14 Bedway Land’s
Motion for Summary Judgment; 1/3/14 Chesapeake’s Motion for Summary
Judgment; 1/3/14 Eric Petroleum’s Motion for Summary Judgment; 1/8/14 Bedway
Land’s Motion for Summary Judgment; 3/12/14 Appellants/Cross-Appellees’ Motion
for Summary Judgment; 3/26/14 Bedway Land’s Motion in Opposition to
Appellants/Cross-Appellees’ Motion for Summary Judgment; 3/26/14 Chesapeake’s
Motion in Opposition to Appellants/Cross-Appellees’ Motion for Summary Judgment;
3/26/14 Eric Petroleum’s Motion in Opposition to Appellants/Cross-Appellees’ Motion
for Summary Judgment; 3/26/14 Appellants/Cross-Appellees’ Motion in Opposition to
the Defendants’ Summary Judgment Motions; 4/1/14 Bedway Land’s Reply in
Support of Summary Judgment; 4/2/14 Appellants/Cross-Appellees’ Reply in Support
of Summary Judgment; 4/2/14 Eric Petroleum’s Reply; 4/2/14 Chesapeake’s Reply;
4/7/14 Appellants’ Reply. Appellees/Cross-Appellants argued the mineral rights were
not abandoned under either the 1989 or 2006 version of                 the ODMA.
Appellants/Cross-Appellees asserted the mineral rights were abandoned under the
1989 version of the Act and there was no need to apply the 2006 Act. They admitted
if the 2006 version of the Act is applicable then they have not followed the
procedures under that Act for the mineral interest rights to be deemed abandoned.
      {¶10} On April 21, 2014 the trial court ruled on the summary judgment
motions. The trial court found the 1989 version of the ODMA was constitutional. It
found both the 1989 and 2006 versions were applicable; however, if the mineral
interest rights vested pursuant to the 1989 Act, then any review under the 2006
                                                                                    -3-

version became moot. The trial court then found under the 1989 Act the 20 year look
back period is a rolling look back. In applying this rolling look back, the trial court
found the 1984 quitclaim deed qualified as a title transaction and savings event. It
also found leases prior to and after the quitclaim deed qualified as title transactions
and savings events. It then concluded there was no 20 year period where a savings
event did not occur; under the 1989 Act the interest were not abandoned. As to the
2006 Act, the court indicated the surface owners had not pursued their claims by
following the requirements under that Act. Therefore, the trial court granted summary
judgment in favor of Appellees/Cross-Appellants and against Appellants/Cross-
Appellees. 4/21/14 J.E.
       {¶11} Appellants/Cross-Appellees       timely    appealed      the     decision.
Appellees/Cross-Appellants, individually, filed cross assignments of error.
                        Appellee/Cross-Appellant Bedway Land’s
                               First Assignment of Error
       “The trial court erred in holding that both the 1989 and 2006 versions of the
Ohio Dormant Mineral Act were applicable to a mineral rights abandonment claim
when the claim was not enforced until 2012, after enactment of the 2006 version of
the act.”
                        Appellee/Cross-Appellant Chesapeake’s
                             First Cross Assignment of Error
       “The trial court erred when it found the 1989 version of the Ohio Dormant
Mineral Act applicable to this case.”
                          Appellee/Cross-Appellant Eric Petroleum’s
                              First Cross Assignment of Error
       “The trial court erred in concluding at page six (6) of its Judgment Entry dated
April 2, 2014, that ‘[i]f no Savings Event has occurred, pursuant to law, the
abandonment and vesting have already taken place in the case at bar,’ thereby
approving of a theory of automatic vesting under the 1989 version of the Ohio
Dormant Mineral Act, R.C. § 5301.56, and relieving the surface owner of the
obligation to plead and prove compliance with the notice requirements of the 2006
version of the Act.”
                                                                                    -4-

      {¶12} These assignments of error solely address the trial court’s decision to
apply the 1989 version of the ODMA to claims filed after the effective date of the
2006 ODMA. As such, these assignments are addressed simultaneously.
      {¶13} 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.

      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.
      {¶14} Application of Corban in this case indicates the trial court’s conclusion
that the mineral rights were not abandoned is correct, albeit for different reasons. As
explained above, the trial court relied on the language of the 1989 version of the
ODMA to find the mineral rights were not 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 after the
effective date of the 2006 ODMA. Accordingly, in order to have the mineral rights
deemed abandoned and reunited with the surface, Appellants/Cross-Appellees were
required to follow the procedures set forth in the 2006 ODMA.
      {¶15} 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-
                                                                                      -5-

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 & appellate
courts’ interpretation of the 1989 ODMA was moot, and the severed mineral rights
remained with the Batmans. Id., ¶ 22. Here, the record is devoid of any compliance
with R.C. 5301.56(B) and (E) as set forth in the 2006 ODMA, i.e., there is no
indication notice was given to the mineral holders of the surface owner’s intent to
have the mineral interest deemed abandoned and vested to the surface. Therefore,
pursuant to Corban and Albanese, summary judgment was appropriately granted in
Appellees/Cross-Appellants’ favor. These assignments of error have merit.
                     Appellants/Cross Appellees’ Assignment of Error
       “The trial court erred when it rejected the Appellants’ claims to vested oil and
gas rights under the 1989 enactment of the Dormant Mineral Act, based upon a
memorandum of oil and gas lease (and ‘quitclaim’ release) relied upon by the
Appellees as a ‘savings event.’”
                     Appellee/Cross-Appellant Bedway Land’s Second,
                       Third, and Fourth Cross Assignments of Error
       “The trial court erred in holding that the 1989 version of the Ohio Dormant
Mineral Act is constitutional.”
       “The trial court erred in holding that the relevant ‘look back’ period under the
1989 version of the Ohio Dormant Mineral Act is a ‘rolling’ twenty year period rather
than the static period of twenty years preceding the Act’s effective date.”
       “The trial court erred in holding that the assignment of a parcel ID number by
the Harrison County Auditor failed to qualify as a savings event under R.C. 5301.56.”
                        Appellee/Cross-Appellant Eric Petroleum’s
                       Second and Third Cross Assignments of Error
       “The trial court erred in failing to find an additional savings event under R.C. §
5301.56(B)(1)(a) of the 1989 version of Ohio Dormant Mineral Act in that the oil and
gas rights were conveyed to Defendant-Appellee, Bedway Land and Minerals
                                                                                          -6-

Company, along with the coal and are, therefore, ‘mining or other rights pertinent to
or exercisable in connection with an interest in coal.”
        “The Judgement Entry dated April 21, 2014, is entitled to affirmance because it
can be supported as correct on the independent basis, argued before the trial court,
that Plaintiffs-Appellants’ claims are barred by the statute of limitations found in R.C.
§ 2305.04 dealing with an action to recover the title to or possession of real property,
the applicability of which is contemplated in R.C. § 5301.54.”
        {¶16} The arguments raised in these assignments of error only address the
application of the 1989 ODMA. Our resolution of Appellee/Cross-Appellant Bedway
Land’s first cross assignment of error, Appellee/Cross-Appellant Chesapeake’s first
cross assignment of error, and Appellee/Cross-Appellant Eric Petroleum’s first cross
assignment of error renders the arguments raised in these assignments of error
moot.
                          Appellee/Cross-Appellant Bedway Land’s
                             Fifth Cross Assignment of Error
        “The trial court erred in its factual description of the mineral interest and its
related transactions held by Appellee/Cross-Appellant Bedway Land and Minerals
Company.”
                      Appellee/Cross-Appellant Chesapeake’s
                        Second Cross Assignment of Error
        “The trial court erred as to certain findings in its April 21, 2014 Entry.”
                      Appellee/Cross-Appellant Eric Petroleum’s
                         Fourth Cross Assignment of Error
        “The trial court erred when it made what are believed to be merely clerical
errors in its Judgment Entry dated April 21, 2014, in the recitation of particular volume
and page references to documents in the chain of title and in describing the quantum
of the fractional mineral interest owned by Defendant-Appellee, Bedway Land and
Mineral Company, and leased to Defendants-Appellees, EPC and Chesapeake
Exploration, LLC.”
        {¶17} It is alleged the trial court made clerical errors in its final judgment entry.
Those clerical errors concern the amount of mineral interest Appellee/Cross-
                                                                                         -7-

Appellant Bedway Land received, and the date and volume and page numbers of
filings.
           {¶18} In regards to the mineral interest, the trial court’s judgment entry states
Appellee/Cross-Appellant Bedway Land received a 7/8 interest in the mineral rights:

           The Defendant Bedway Land and Mineral Company (Bedway) received
           a 7/8 interest in the mineral rights herein, including coal, oil and gas by
           way of Quitclaim Deed. * * * Said memorandum leased approximately
           1383.953 acres (including the Mineral Estate herein).

           ***

           Consequently, Plaintiffs own the surface herein and claim the severed
           minerals pursuant to the 1989 version of the Ohio Dormant Mineral Act.
           The Defendant Bedway claims a 7/8 interest in the minerals and
           Defendants Eric Petroleum and Chesapeake Exploration claim interests
           by way of an oil and gas lease and subsequent assignments.

4/21/14 J.E. pg. 2-3.
           {¶19} Appellees/Cross-Appellants argue as to 36 acres, Bedway Land has a
7/8 mineral interest; however, as to the remainder of the surface at issue, Bedway
Land has a whole interest (“8/8”) in the mineral rights. Appellants/Cross-Appellees
agree. 8/20/14 Brief.
           {¶20} The record supports the parties’ position. Accordingly, the matter is
remanded to the trial court to indicate Bedway Land has a 7/8 interest in the oil and
gas underlying approximately 36 acres of the surface estate and a whole interest
(8/8) as to the balance of the mineral estate that is conterminous with the Appellants’
surface.
           {¶21} The parties also agree there are typographical errors in the date and
volume and page numbers of filings. The record supports their agreement. As such,
the sentence on page two of the judgment entry that reads, “The same being filed on
May 25, 1983 and recorded at Lease Book 179, Page 359.”, should be changed to
“The same being filed on June 27, 1983 and recorded at Lease Book 68, Page 171.”
                                                                                        -8-

In the following paragraph the sentence, “Thereafter, Mason Dixon Energy, LLC,
successor in interest to Burlington Resources Oil & Gas Company L P.(Burlington
Resources) at Official Record Book 21, Page 451.”, should be changed to,
“Thereafter, Mason Dixon Energy, LLC, successor in interest to Burlington Resources
Oil & Gas Company L P. (Burlington Resources) at Official Record Book 183, Page
2737.”     The sentence that follows states, “Burlington Resources assigned their
interest to Defendant Eric Petroleum on October 1, 2007 who then signed a partial
assignment to Ohio Buckeye Energy L.L.C. on July 15, 2010 at Official Record Book
183, Page 2737.”      That sentence should be changed to, “Burlington Resources
assigned their interest to Defendant Eric Petroleum on October 1, 2007 who then
signed a partial assignment to Ohio Buckeye Energy L.L.C. on July 15, 2010 at
Official Record Book 185, Page 2110.”
         {¶22} These assignments of error have merit.
                                  Conclusion
         {¶23} Appellee/Cross-Appellant   Bedway    Land’s   first    and     fifth   cross
assignments of error, Appellee/Cross-Appellant Chesapeake’s first and second cross
assignments of error, and Appellee/Cross-Appellant Eric Petroleum’s first and fourth
cross assignments of error have merit.           Appellant’s assignment of error,
Appellee/Cross-Appellant     Bedway    Land’s   second,   third,     and    fourth    cross
assignments of error, and Appellee/Cross-Appellant Eric Petroleum’s second and
third cross assignments are moot.
         {¶24} Although the trial court’s reliance on the 1989 ODMA to grant summary
judgment for Appellees/Cross-Appellants was in error, summary judgment is still
appropriate for Appellees/Cross-Appellants. Pursuant to the Ohio Supreme Court’s
decision in Corban, the 1989 version of the ODMA is inapplicable to claims asserted
after the 2006 ODMA’s effective date. Corban, 2016-Ohio-5796 at ¶ 40-41. The
claims were asserted after the effective date of the 2006 ODMA.                 However,
Appellants/Cross-Appellees admittedly did not follow the procedures in the 2006
ODMA to have the mineral rights deemed abandoned.            Consequently, for those
                                                                                        -9-

reasons summary judgment was appropriately granted in Appellees/Cross-
Appellants’ favor.
         {¶25} The matter, however, must be reversed in part and remanded to the
trial court to correct clerical errors in its judgment entry.
         {¶26} Therefore, the trial court’s decision is affirmed in part, reversed in part,
and the matter is remanded to the trial court to correct clerical errors in its judgment
entry.



Donofrio, J., concurs.

DeGenaro, J., concurs.
