[Cite as Hutchens v. Graham, 2017-Ohio-7829.]


                                      COURT OF APPEALS
                                  GUERNSEY COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

GEORGE H. HUTCHENS, ET AL.                         JUDGES:
                                                   Hon. Patricia A. Delaney, P.J.
        Plaintiffs-Appellants                      Hon. William B. Hoffman, J.
                                                   Hon. Earle E. Wise, Jr., J.
-vs-
                                                   Case No. 17 CA 4
DAVID GRAHAM, ET AL.

        Defendants-Appellees                       OPINION




CHARACTER OF PROCEEDING:                        Appeal from the Guernsey County Common
                                                Pleas Court, Case No. 15-OG-209


JUDGMENT:                                       Affirmed

DATE OF JUDGMENT ENTRY:                         September 25, 2017

APPEARANCES:

For Plaintiffs-Appellants                       For Defendants-Appellees

ANDREW P. LYCANS                                JOHN R. ESTADT
ERIC T. MICHENER                                KYLE W. BICKFORD
Critchfield, Critchfield & Johnston, Ltd.       Hanlon, Estadt, McCormick
225 N. Market S.                                & Schramm, Co. LPA
Wooster, Ohio 44691                             46457 National Road West
                                                St. Clairsville, Ohio 43950
Guernsey County, Case No. 17 CA 4                                                      2

Hoffman, J.



      {¶1}    Plaintiffs-appellants George H. Hutchens, et al. appeal the February 28,

2017 Judgment Entry Nunc Pro Tunc1 entered by the Guernsey County Court of Common

Pleas, which granted summary judgment in favor of defendants-appellees David Graham,

et al., and declared Appellees the fee simple owners of the oil and gas mineral estate

underlying 30.2 acres of real property located in Londonderry Township, and quieted title

in their names.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    This appeal concerns the ownership of mineral rights beneath 30.2 acres of

land located in Londonderry Township, Guernsey County, Ohio (“the Property”). On May

28, 1927, Albert West conveyed the surface interests of the Property to W. B. Bay. West

reserved the mineral interests underlying the Property through an express reservation.

Bay transferred the surface rights to Bert Robinson on November 17, 1927. Bay also

reserved the mineral interest through an express reservation. On May 16, 1932, the First

Trust Savings and Loan of the City of Zanesville obtained the Property via a Sheriff’s

Deed from Thomas E. Gracy, Sheriff of Guernsey County. On June 29, 1934, the First

Trust Savings and Loan conveyed the Property to Henry A. Buerhaus.             Buerhaus

subsequently conveyed the surface interests of the Property to B.H. Boniphant, but

reserved the mineral interests underlying the Property through an express reservation.

The surface interests were conveyed a number of times over the years.



1
  The trial court filed its original Judgment Entry on February 6, 2017. The trial court
issued the Nunc Pro Tunc Entry to include a legal description of the oil and gas mineral
estate.
Guernsey County, Case No. 17 CA 4                                                            3


         {¶3}   Charles E. Hutchens and Martha Hutchens obtained 44 acres of real

property, which included the Property, via quit claim deed from Caldwell Savings and

Loan Company on December 23, 1983.

         {¶4}   The 1983 Deed contained the following language:



                * * * excepting and reserving from the above described premises the

         coal as excepted in the [sic] deed given by Albert J. West to W.B. Bay, said

         deed being dated May 16, 1927 * * *. Also, excepting and reserving all the

         oil and gas in and under the aforesaid described premises, together with

         the right to enter thereon at all times for the purpose of drilling and operating

         for oil and gas, and the right to erect derricks, tanks, buildings and structures

         thereon, and to lay all necessary pipe lines thereon for the production and

         transportation of said oil and gas. Being the same premises conveyed to

         John W. Hannum by Warranty Deed recorded March 29, 1937 * * *



         {¶5}   Charles Hutchens passed away on September 10, 1990. Martha Hutchens

recorded an Affidavit of Survivorship on September 18, 1990. On April 27, 1991, Martha

Hutchens sold 14 of the 44 acres to Carmel G. Graham and Phyllis A. Graham. The deed

did not include an exception or reservation of the oil and gas rights underlying these 14

acres.

         {¶6}   On January 29, 1998, Martha Hutchens sold the Property to Carmel and

Phyllis Graham.

         {¶7}   The 1998 Deed contained the following language:
Guernsey County, Case No. 17 CA 4                                                      4




             Also excepting and reserving all the oil and gas in and under the

      aforesaid described premises, together with the right to enter thereon at all

      times for the purpose of drilling and operating for oil and gas, and the right

      to erect derricks, tanks, buildings and structures thereon, and to lay all

      necessary pipe lines thereon for the production and transportation of said

      oil and gas.



      {¶8}   Carmel and Phyllis Graham transferred the Property to Appellees on

January 8, 2008. The 2008 Deed did not include a property description. Instead, a copy

of the first page of the 1998 Deed is attached to the document.

      {¶9}   On January 5, 2012, Appellees published a Notice of Abandonment in the

Daily Jeffersonian newspaper, pursuant to the 2006 version of the Ohio Dormant Mineral

Act (“2006 ODMA”). The Notice was directed to Henry A. Buerhaus, Albert J. West, Anna

M. West, and W.B. Bay, and their unknown heirs and assigns. There is no evidence

Appellants were ever provided the requisite notice. On March 1, 2012, Appellees

executed and recorded an Affidavit of Abandonment pursuant to R.C. 5301.56(E)(2). In

order to complete the abandonment process under the 2006 ODMA, Appellees filed and

recorded an Affidavit and Request to Memorialize the Record on April 11, 2012.

Appellees executed an oil and gas lease with Eclipse Resources I, LP, on September 20,

2012. The lease was recorded on October 5, 2012.

      {¶10} Appellants executed an Affidavit to Transfer Interest in Real Estate on

October 22, 2014. The Affidavit was recorded on November 5, 2014. The purpose of the
Guernsey County, Case No. 17 CA 4                                                      5


Affidavit was to transfer the mineral rights underlying the Property to Appellants from

Martha Hutchens. On March 9, 2015, Appellants executed an Amended Certificate of

Transfer from the Estate of Martha L. Hutchens also with the purpose of transferring the

mineral interests underlying the Property. The Amended Certificate of Transfer was

recorded on March 17, 2015.

      {¶11} On May 18, 2015, Appellant George Hutchens and Jack Hutchens2 filed suit

against Appellees, Stephen Wilson, Henry A. Buerhaus and anyone who might claim the

mineral rights through him, and Albert J. West and anyone who might claim the mineral

rights through him (“Berhaus and West”). The Complaint sought declaratory judgment

pursuant to the 1989 Ohio Dormant Mineral Act (“1989 ODMA”) and to quiet title to the

mineral interest underlying the Property. Appellant George Hutchens and Jack Hutchens

alleged the reserved mineral interests reverted to Martha Hutchens, who owned the

surface rights on March 22, 1992, the date on which the 1989 ODMA became effective.

      {¶12} Appellees filed an Answer and Counterclaim on July 17, 2015. In their

Counterclaim, Appellees sought declaratory judgment and asserted claims of slander of

title and tortious interference with business relationships. Because the other defendants

failed to answer or otherwise respond to the Complaint, Appellant George Hutchens and

Jack Hutchens filed motions for default judgment against Buerhaus and West on October

5, 2015, and Wilson on October 15, 2015, and requested the trial court quiet title to the

mineral interests in their names. Appellees filed a motion in opposition to the proposed

default judgment order, arguing the title should be quieted in their names as they had




2
 Sarah Hutchens was substituted as a party plaintiff in place of Jack Hutchens during the
course of the proceedings.
Guernsey County, Case No. 17 CA 4                                                          6


successfully utilized the 2006 ODMA to obtain the mineral interests prior to the filing of

the lawsuit.

       {¶13} The parties subsequently submitted an Agreed Order quieting title against

Buerhaus and West. On November 4, 2015, the trial court signed the parties’ Agreed

Order and, in addition, entered an Order quieting title against Wilson. The Orders did not

specify in whom title was quieted. Each order included the language, “THIS IS A FINAL,

APPEALABLE ORDER, THERE BEING NO JUST REASON FOR DELAY.” Neither party

nor the defaulting defendants appealed.

       {¶14} On April 19, 2016, the parties filed cross-motions for summary judgment.

The trial court stayed the matter pending the Ohio Supreme Court’s decisions in Walker

v. Shondrick-Nau, ––– Ohio St.3d –––, 2016-Ohio-5793, –––N.E.3d –––– , and Tribett v.

Shepherd, –––Ohio St.3d ––––, 2016–Ohio–5821, ––– N.E.3d ––––, regarding whether

the 1989 or the 2006 version of the ODMA controls.

       {¶15} After the Ohio Supreme Court issued its decision in Corban v. Chesapeake

Expl., L.L.C., ––– Ohio St.3d ––––, 2016–Ohio–5796, ––– N.E.3d ––––, the trial court

ordered the parties to file status briefs on or before October 28, 2016. Appellees renewed

their motion for summary judgment and moved the trial court to lift the stay. Via Entry

filed November 14, 2016, the trial court lifted the stay, returned the case to the active

docket, and ordered the parties to complete additional briefing by December 22, 2016.

The parties filed their responses and reply briefs in support of their respective positions.

       {¶16} Via Entry filed January 23, 2017, the trial court granted summary judgment

in favor of Appellees. The trial court dismissed Appellants’ Complaint and quieted title to

the oil and gas mineral estate in favor of Appellees. The trial court ordered Appellees to
Guernsey County, Case No. 17 CA 4                                                          7


submit a proposed judgment entry. The trial court signed the proposed judgment entry

on February 6, 2017. The trial court issued a Nunc Pro Tunc Order on February 26, 2017,

to include a legal description of the Property.

       {¶17} It is from these entries Appellants appeal, raising the following as error:



              I. THE TRIAL COURT ERRED IN HOLDING THAT THE GRAHAMS

       COMPLIED WITH THE NOTICE PROVISIONS OF THE DORMANT

       MINERAL ACT OF 2006.

              II. THE TRIAL COURT ERRED IN HOLDING THAT THE AGREED

       ORDER QUIETED TITLE AGAINST THE DEFAULTING DEFENDANTS IN

       THE GRAHAMS.



                       SUMMARY JUDGMENT STANDARD OF REVIEW

       {¶18} Summary judgment proceedings present the appellate court with the unique

opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v.

The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As such, this

Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co.

(1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241.

       {¶19} Civ.R. 56 provides summary judgment may be granted only after the trial

court determines: 1) no genuine issues as to any material fact remain 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 party against whom the motion for summary
Guernsey County, Case No. 17 CA 4                                                            8

judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc.

(1977), 50 Ohio St.2d 317, 364 N.E.2d 267.

       {¶20} It is well established the party seeking summary judgment bears the burden

of demonstrating that no issues of material fact exist for trial. Celotex Corp. v. Catrett

(1987), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265. The standard for granting

summary judgment is delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280 at 293, 662

N.E.2d 264: “ * * * a party seeking summary judgment, on the ground that the nonmoving

party cannot prove its case, bears the initial burden of informing the trial court of the basis

for the motion, and identifying those portions of the record that demonstrate the absence

of a genuine issue of material fact on the essential element(s) of the nonmoving party's

claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by

making a conclusory assertion the nonmoving party has no evidence to prove its case.

Rather, the moving party must be able to specifically point to some evidence of the type

listed in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has no

evidence to support the nonmoving party's claims. If the moving party fails to satisfy its

initial burden, the motion for summary judgment must be denied. However, if the moving

party has satisfied its initial burden, the nonmoving party then has a reciprocal burden

outlined in Civ.R. 56(E) to set forth specific facts showing there is a genuine issue for trial

and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be

entered against the nonmoving party.” The record on summary judgment must be viewed

in the light most favorable to the opposing party. Williams v. First United Church of Christ

(1974), 37 Ohio St.2d 150, 309 N.E.2d 924.

                                                 I, II
Guernsey County, Case No. 17 CA 4                                                          9


       {¶21} Because Appellants’ assignments of error are intertwined, we shall address

them together.

       {¶22} We must first examine the effect of the November 5, 2015 Agreed Order on

the claims of the parties.

       {¶23} “For a judgment to be final and appealable, it must satisfy the requirements

of R.C. 2505.02 and, if applicable, Civ.R. 54(B).” Chef Italiano Corp. v. Kent State Univ.

(1989), 44 Ohio St.3d 86, 88. R.C. 2505.02 provides, in relevant part, an order is final

when it “affects a substantial right in an action that in effect determines the action and

prevents a judgment[.]” Pursuant to Civ. R. 54(B), “[if] more than one claim for relief is

presented in an action * * * or when multiple parties are involved, the court may enter final

judgment as to one or more but fewer than all of the claims or parties only upon an express

determination that there is no just reason for delay.” However, the mere incantation of

the required language does not turn an otherwise non-final order into a final appealable

order. Noble v. Colwell (1989), 44 Ohio St.3d 92, 96, 540 N.E.2d 1381.

       {¶24} In the November 5, 2015 Agreed Order, the trial court quieted title against

Buerhaus and West. The trial court did not quiet title in favor of either Appellants or

Appellees. The trial court’s order leaves unresolved the issue of the ownership of the

mineral interests as between the parties. The Agreed Order only addressed the mineral

interests as to Berhaus and West, and the trial court’s inclusion of Civ. R. 54(B) language

did not render the order final as to Appellants and Appellees.

       {¶25} We now address the state of the mineral interests underlying the Property.

       {¶26} In Corban v. Chesapeake Expl., L.L.C., ––– Ohio St.3d ––––, 2016–Ohio–

5796, ––– N.E.3d ––––, ¶ 26–28, the Ohio Supreme Court held “the 2006 version of the
Guernsey County, Case No. 17 CA 4                                                          10


Dormant Mineral Act applies to all claims asserted after 2006 alleging that the rights to

oil, gas, and other minerals automatically vested in the owner of the surface estate prior

to the 2006 amendments.” Walker v. Shondrick–Nau, ––– Ohio St.3d ––––, 2016–Ohio–

5793, ––– N.E.3d ––––, ¶ 16; Albanese v. Batman, 148 Ohio St.3d 85, 2016–Ohio–5814,

68 N.E.3d 800, ¶ 16. Accordingly, any arguments by the parties pertaining to the 1989

ODMA are moot. Appellants filed their Complaint in 2015; therefore, the 2006 ODMA

applies to the instant matter. Albanese, supra at ¶ 16–22.

        {¶27} The Corban Court further held the 1989 ODMA was not self-executing and

did not automatically transfer a mineral rights interest from the mineral rights holder to the

surface owner by operation of law. Instead, a surface owner seeking to merge those rights

with the surface estate under the 1989 ODMA was required to commence a quiet title

action seeking a decree that the dormant mineral interest was deemed abandoned. Id.at

¶ 28.

        {¶28} The 2006 ODMA provides a dormant mineral interest “shall be deemed

abandoned and vested in the owner of the surface of the lands subject to the interest if

the requirements established in division (E) of this section are satisfied.” (Emphasis

added.) Id. at ¶ 29; R.C. 5301.56(B). The Corban Court explained:



              Dormant mineral interests did not automatically pass by operation of

        law to the surface owner pursuant to the 1989 law. Thus, as of June 30,

        2006, any surface holder seeking to claim dormant mineral rights and merge

        them with the surface estate is required to follow the statutory notice and

        recording procedures enacted in 2006 by H.B. 288. These procedures
Guernsey County, Case No. 17 CA 4                                                     11


      govern the manner by which mineral rights are deemed abandoned and

      vested in the surface holder and apply equally to claims that the mineral

      interests were abandoned prior to June 30, 2006.

      Id. at ¶ 31.



      {¶29} Charles and Martha Hutchens acquired the original 44 acres in 1983. The

1983 Deed only conveyed the surface rights to them, and specifically reserved the mineral

rights subject to the prior reservations. Following Charles Hutchens’ death, Martha

Hutchens sold 14 of the 44 acres to Carmel and Phyllis Graham in 1991. The deed did

not include an exception or reservation of the mineral rights underlying these 14 acres.

In 1998, Martha Hutchens sold the Property to Carmel and Phyllis Graham. The 1998

Deed included an express reservation of the mineral rights. However, Martha Hutchens

did not have any rights to the mineral interests underlying the Property at that time,

therefore, she could not reserve those interests to herself despite the language in the

1998 Deed.

      {¶30} Appellants contend the mineral rights were abandoned and reunited with

the surface pursuant to the 1989 ODMA; and, as such, they are entitled to have the title

to the Property quieted in their names. Although we find Appellants’ argument reasonable

given the state of the law as it related to the 1989 ODMA prior to the Corban decision,

their position is, nonetheless, erroneous. As discussed, supra, the 1989 ODMA was not

self-executing pursuant to Corban. In order to have the oil, gas and other mineral rights

deemed abandoned and reunited with the surface, Appellants were required to follow the

procedures set forth in the 2006 ODMA. Appellants did not follow those procedures.
Guernsey County, Case No. 17 CA 4                                                      12


      {¶31} On the other hand, Appellees acquired the Property subject to prior

reservations, and followed the procedures set forth in the 2006 ODMA. Appellants

contend Appellees failed to serve them with the requisite notice pursuant to R.C. 5301.56.

Because Appellants were not holders of the mineral interests, Appellees were not

required to serve notice on them.

      {¶32} Based upon the foregoing, we find the trial court did not err in finding

Appellees complied with R.C. 5301.56(E), and did not err in ordering title to the Property

be quieted in Appellees’ names.

      {¶33} Appellants’ first and second assignments of error are overruled.

      {¶34} The judgment of the Guernsey County Court of Common Pleas is affirmed.



By: Hoffman, J.

Delaney, P.J. and

Wise, Earle, J. concur
