[Cite as Pabin v. Eberle, 2019-Ohio-2728.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                  MONROE COUNTY

                                    PHILIP F. PABIN ET AL.,

                                        Plaintiffs-Appellees,

                                                 v.

                                      ELLA EBERLE ET AL.,

                                      Defendants-Appellants.


                        OPINION AND JUDGMENT ENTRY
                             Case Nos. 18 MO 0008 and 18 MO 0009


                                    Civil Appeal from the
                        Court of Common Pleas of Monroe County, Ohio
                                     Case No. 2015-346

                                         BEFORE:
                 Gene Donofrio, Cheryl L. Waite, David A. D’Apolito, Judges.


                                            JUDGMENT:
                                  Affirmed in Part. Reversed in Part



 Atty. C. Keith Plummer, Tribbie, Scott, Plummer & Padden, 139 West Eighth Street,
 P.O. Box 640, Cambridge, Ohio 43725, for Plaintiffs-Appellees, and

 Atty. Thomas White, Atty. Matthew Kearney, Atty. Katherine Kimble, White Law
 Office, 209 North Washington Street, Millersburg, Ohio 44654 and Atty. Craig Wilson,
 C.J. Wilson Law, LLC, P.O. Box 2879, Westerville, Ohio 43086, for Defendants-
                                                                                      –2–


 Appellees (Gerald Cramer et al.), and Atty. David Schaffner, Schaffner Law Offices
 Co., L.P.A., for Defendants-Appellants (Donald C. Cameron, et al.), and Atty. David
 Wigham, Atty. Sara Fanning, Roetzel & Andress, LPA., 222 South Main Street, Suite
 400, Akron, Ohio 44308, for Defendants-Appellants (Larry Kearns et al.).

                                         Dated:
                                      June 28, 2019

 Donofrio, J.

       {¶1}   Defendants-appellants, Larry Kearns, Karrie Kearns, Lisa Timmons, Randy
Timmons, Penny Hersman, and Kim Hersman (the Kearns appellants), appeal the
judgment of the Monroe County Common Pleas Court quieting title to oil and gas rights
in favor of defendants-appellees, Gerald Cramer, Mary Ella Cramer, Betty Kelly, Edgar
Kelly, Judy Eberle, Paul Eberle Jr., and Karen Eberle (the Cramer appellees).
       {¶2}   In a separate appeal, defendants-appellants, Donald Cameron, Gloria
Cameron, and ODMA Resources, LLC (the Cameron appellants), appeal the trial court’s
award of summary judgment in the same oil and gas rights in favor of plaintiffs-appellees,
Philip and Christina Pabin (the Pabin appellees).
       {¶3}   This case involves two appeals: one from the Kearns appellants (Case No.
18 MO 0009) and one from the Cameron appellants (Case No. 18 MO 0008). This court
consolidated the two appeals since both sets of appellants are, in part, appealing the
same judgment entry. We will begin with the Kearns appellants’ assignments of error and
a recitation of the facts and events relevant to their appeal.
       {¶4}   In 1924, Lewis and Ella Eberle owned the surface and all mineral rights to
real property in Monroe County, Ohio. On September 11, 1924, Lewis and Ella conveyed
1/32 of the oil and gas rights of the property to F.H. Ward and J.H. Cooper (the Ward
reservation). This left Lewis and Ella with the remaining 31/32 of the oil and gas rights.
The disposition of the Ward reservation is not at issue in this appeal.
       {¶5}   On October 5, 1944, Lewis died testate naming Ella his sole heir. This made
Ella the sole owner of the surface rights to the property and the sole owner of oil and gas
rights to the property minus the Ward reservation.




Case Nos. 18 MO 0008; 18 MO 0009
                                                                                             –3–


         {¶6}    In late 1961, Ella sold the surface rights of the property to Emmet and Stella
Huffman. In this conveyance, Ella reserved her entire oil and gas interest in the property
(the Eberle reservation).
         {¶7}    On April 4, 1973, Ella died intestate. Ella left four heirs: Arnold Eberle, Paul
Eberle, Emmett Huffman, and Clyde Eberle. Each of Ella’s heirs inherited an equal 1/4
share of the Eberle reservation. In addition to the 1/4 of the Eberle reservation, Emmet
and Stella Huffman also owned the surface rights to the property.
         {¶8}    All four of Ella’s direct heirs have since died but have left heirs of their own.
Arnold Eberle’s heirs are appellees Gerald and Mary Ella Cramer. Paul Eberle’s heirs
are appellees Betty Kelly, Edgar Kelly, Judy Eberle, Paul Eberle Jr., and Karen Eberle.
Emmett Huffman’s heir was Stella Huffman. When Stella Huffman died, her heir was
Donald Cameron. Clyde Eberle’s heir is Eileen Eberle.
         {¶9}    On May 11, 1976, Stella Huffman sold her rights to the property, including
the surface, to Kenneth Huffman (the Huffman deed). On April 12, 1982, Kenneth
Huffman sold his rights to the property to Chester Pabin (the Chester deed). On May 19,
1999, Chester Pabin sold his rights to the property to the Pabin appellees (the Pabin
deed).
         {¶10} On October 8, 2015, Eileen Eberle recorded an oil and gas lease she
entered into with Eclipse Resources. Eileen leased her entire interest in the Eberle
reservation to Eclipse Resources.
         {¶11} On October 22, 2015, the Pabin appellees filed this action seeking to quiet
title to all outstanding mineral and oil and gas interests in the property on the basis that
they were abandoned under the 1989 Dormant Mineral Act (DMA). The Pabin appellees
also filed a motion and an affidavit to serve all defendants by publication. The trial court
approved service by publication on October 28, 2015. Service by publication began on
December 7, 2015.
         {¶12}    On January 12, 2016, Eileen Eberle died. Eileen’s heirs are appellant
Penny Hersman and Vicky Kearns. On March 5, 2016, Vicky Kearns died. Vicky’s heirs
are appellants Larry Kearns and Lisa Timmons.




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                                                                                         –4–


       {¶13} Between February 16, 2016 and May 5, 2016, many parties appeared in
this action by either filing an answer, an answer and a counterclaim, or a motion for leave
to file an answer. But the Kearns appellants did not appear in this action at this time.
       {¶14} The Cramer appellees filed their answer to the Pabin appellees’ complaint
on May 5, 2016. Their answer did not contain a counterclaim or cross-claim and sought
the following relief: the complaint be dismissed with prejudice, title to the subject minerals
be quieted to Defendants in the amount of their respective interest, defendants be
awarded damages in an amount to be determined at trial, and defendants be awarded
costs and reasonable attorney’s fees.
       {¶15}   The Cramer appellees filed the first motion for summary judgment on July
25, 2017. This motion not only sought summary judgment on the Pabin appellees’ claims,
but also argued that the Cramer appellees were entitled to the non-answering defendants’
interests in the Eberle reservation. This included the Kearns appellants’ interest in the
Eberle reservation.
       {¶16}   On August 14, 2017, the Pabin appellees filed a motion for default
judgment against all non-answering defendants; including the Kearns appellants. On the
same day, the Pabin appellees filed a response to the Cramer appellees’ motion for
summary judgment.
       {¶17}   On August 17, 2017, the Kearns appellants filed an “unopposed motion to
intervene.” The Kearns appellants argued that they were unaware of this action until they
hired counsel to represent them in a separate matter. When their counsel was conducting
research on the separate matter, he discovered that this matter was pending. The motion
explained that counsel for the Pabin appellees had consented to the intervention. The
motion also contained an answer and counterclaim. The trial court granted this motion
and deemed their answer and counterclaim filed on August 21, 2017.
       {¶18}   On October 17, 2017, the trial court ruled on the pending dispositive
motions. The trial court held that 50% of the Eberle reservation was quieted in favor of
appellees Gerald and Mary Ella Cramer and the other 50% was quieted in favor of
appellees Betty Kelly, Judy Eberle, and Paul Eberle, Jr. This judgment entry categorized
the Kearns appellants as non-answering defendants.




Case Nos. 18 MO 0008; 18 MO 0009
                                                                                         –5–


       {¶19}   After the October 17, 2017 judgment entry was filed, several motions by
multiple parties were filed. Among these motions was one from the Kearns appellants
seeking clarification of the trial court’s October 17, 2017 ruling that they were non-
answering defendants when the trial court granted their motion to intervene.
       {¶20}   The numerous motions led the trial court to issue a judgment entry on
November 8, 2017. This judgment entry made two rulings. First, it vacated the October
17, 2017 dispositive motion ruling.      Second, it vacated the August 21, 2017 ruling
permitting the Kearns appellants’ intervention.       The trial court vacated the Kearns
appellants’ intervention on the basis that the motion was only served on the Pabin
appellees and not on other defendants in this action and therefore, it was not unopposed
as the Kearns appellants argued.
       {¶21}   On January 31, 2018, the Pabin appellees filed another motion for default
judgment. The Pabin appellees argued that they were entitled to default judgment against
all non-answering defendants, including the Kearns appellants. Several other motions
for summary judgment and memos in opposition to summary judgment were also filed.
       {¶22}   On April 26, 2018, the trial court ruled on all pending motions. The trial
court readdressed the Kearns appellants’ motion to intervene. The trial court held that
the Kearns appellants were not permitted to intervene because their motion was filed
almost two years after the Pabin appellees filed this action. Thus, the trial court held that
the motion was untimely and intervention would have prejudiced the Cramer appellees.
       {¶23}   The trial court then addressed all outstanding dispositive motions.
Relevant to the Kearns appellants’ appeal, the trial court held that the Pabin appellees
were barred from asserting any claim pursuant to the 1989 DMA pursuant to the Ohio
Supreme Court’s decision in Corban v. Chesapeake Exploration, L.L.C., 149 Ohio St.3d
512, 2016-Ohio-5796, 76 N.E.3d 1089. Addressing the Eberle reservation, the trial court
also held that the Pabin appellees had no claim to any interest held by the Cramer
appellees or the Kearns appellants. Regarding the Kearns appellants’ 1/4 of the Eberle
reservation (that they inherited from Eileen Eberle), the trial court awarded it to the Cramer
appellees as follows: 50% to Gerald and Mary Ella Cramer and 50% to Betty Kelly, Judy
Johnson, and Paul Eberle Jr.




Case Nos. 18 MO 0008; 18 MO 0009
                                                                                         –6–


       {¶24}   On May 3, 2018, the Kearns appellants filed a motion to partially vacate
the trial court’s April 26, 2018 judgment. The Kearns appellants argued that the trial court
lacked personal jurisdiction over Eileen Eberle’s interest in the Eberle reservation
because neither they nor Eileen were properly served notice of this action. Both the Pabin
appellees and the Cramer appellees opposed this motion.
       {¶25}   The Kearns appellants timely filed a notice of appeal on May 25, 2018.
After this appeal was filed, the trial court denied the Kearns appellants’ motion to partially
vacate judgment. This court held that the trial court’s ruling on the motion to partially
vacate was null and void and remanded this matter to the trial court to reissue its ruling
on the motion to vacate. The trial court reissued its judgment entry on the motion to
vacate on July 10, 2018.
       {¶26} The Kearns appellants now raise four assignments of error. Since the
Kearns appellants’ second and third assignments of error are dispositive, we will address
them out of order and start with the third assignment of error.
       {¶27} The Kearns appellants’ third assignment of error states:

               THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT SET
       ASIDE THE ORDER GRANTING APPELLANTS [sic] LEAVE TO
       INTERVENE IN THIS CASE.

       {¶28}   The Kearns appellants argue that they consulted with the Pabin appellees’
counsel prior to filing their motion to intervene which is why it was presented as
“unopposed.” They also argue that they were permitted to intervene in the case as of
right and the trial court’s order vacating their intervention in the case was error.
       {¶29}   The standard of review on a motion to intervene is abuse of discretion.
State ex rel. N.G. v. Cuyahoga Cty. Court of Common Pleas, Juvenile Div., 147 Ohio
St.3d 432, 2016-Ohio-1519, 67 N.E.3d 728, ¶ 21. The standard of review on a trial court’s
judgment vacating a previous order is also abuse of discretion. Quick v. Jenkins, 7th Dist.
Columbiana No. 13 CO 4, 2013-Ohio-4371, ¶ 24. An abuse of discretion is more than an
error of law or judgment; it implies that the trial court's judgment was unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 1140 (1983).


Case Nos. 18 MO 0008; 18 MO 0009
                                                                                          –7–


       {¶30}    The Kearns appellants filed their “unopposed motion to intervene” on
August 17, 2017. This motion explained that “[c]ounsel for plaintiffs has consented to the
granting of this motion.” On August 21, 2017, the trial court granted this motion. On
November 8, 2017, the trial court vacated the August 21, 2017 order because a copy of
the motion was never sent to counsel for the Cramer appellees. But the certificate of
service on the Kearns appellants’ motion to intervene indicates a copy was sent to Craig
J. Wilson.     At the time, Wilson was one of the attorneys representing the Cramer
appellees. The others, who were not listed on the certificate of service, were Thomas D.
White and Matthew A. Kearney of the White Law Office.
       {¶31}    The trial court’s April 26, 2018 judgment entry clarifies that the order
granting the Kearns appellants’ intervention was set aside for three reasons: it improperly
represented that it was unopposed, it was untimely, and allowing the Kearns appellants’
intervention would prejudice the Cramer appellees.
       {¶32}    The Kearns appellants argue that they should have been permitted to
intervene as of right. Intervention as of right is governed by Civ.R. 24(A). This rule
provides, in relevant part, that upon a timely application, anyone shall be permitted to
intervene in an action “when the applicant claims an interest relating to the property or
transaction that is the subject of the action and the applicant is so situated that the
disposition of the action may as a practical matter impair or impede the applicant’s ability
to protect that interest, unless the applicant's interest is adequately represented by
existing parties.” Civ.R. 24(A)(2).
       {¶33}    Thus, a motion to intervene as of right has four elements. First, it must be
timely. Second, the applicant must have an interest in the property or transaction that is
the subject of the action. Third, disposition of the action may impair or impede the
applicant’s ability to protect that interest. Fourth, the applicant’s interest is not adequately
represented by existing parties.
       {¶34}    It is undisputed that the second, third, and fourth elements are met. The
Kearns appellants have an interest in the Eberle reservation, which is the subject of this
action. The disposition of this action would impair or impede their ability to protect their
interest in the Eberle reservation. No existing party adequately represented the Kearns




Case Nos. 18 MO 0008; 18 MO 0009
                                                                                         –8–


appellants’ interest because the Cramer appellees were ultimately awarded their share
of the Eberle reservation.
       {¶35}    The Cramer appellees do argue that the Kearns appellants’ motion to
intervene was untimely. The Pabin appellees’ complaint was filed on October 22, 2015.
Service by publication was completed on January 21, 2016. In a judgment entry dated
December 6, 2016, the trial court issued the following scheduling order: discovery cutoff
date was June 30, 2017, dispositive motion deadline was July 31, 2017, responses
deadline was August 14, 2017, and the replies deadline was August 28, 2017. But it was
not until August 17, 2017, about 20 months after the complaint was filed and about two
weeks after the dispositive motion deadline, when the Kearns appellants filed their motion
to intervene.
       {¶36}    Whether a Civ.R. 24 motion is timely depends on the facts and
circumstances of each case. State ex rel. First New Shiloh Baptist Church v. Meagher,
82 Ohio St.3d 501, 503, 696 N.E.2d 1058 (1998). The facts and circumstances are:

       “(1) the point to which the suit had progressed; (2) the purpose for which
       intervention is sought; (3) the length of time preceding the application during
       which the proposed intervenor knew or reasonably should have known of
       his interest in the case; (4) the prejudice to the original parties due to the
       proposed intervenor's failure after he knew or reasonably should have
       known of his interest in the case to apply promptly for intervention; and (5)
       the existence of unusual circumstances militating against or in favor of
       intervention.”

Id. quoting Triak Co. v. TRW, Inc., 724 F.2d 1224, 1228 (C.A.6. 1984).
       {¶37}    Addressing the point to which the suit had progressed, the Kearns
appellants’ filed their motion to intervene almost 20 months after the original complaint
was filed and two weeks after the dispositive motion deadline. Moreover, two months
after the Kearns appellants filed their motion to intervene, the trial court issued its first
ruling on summary judgment motions. Therefore, this factor does not weigh in favor of
intervention.




Case Nos. 18 MO 0008; 18 MO 0009
                                                                                       –9–


       {¶38}   Addressing the purpose for the intervention, the Kearns appellants
claimed a 1/4 interest in the Eberle reservation.        As the disposition of the Eberle
reservation was one of the central issues of this action, they had a right to defend their
interest. Therefore, this factor weighs in favor of intervention.
       {¶39}   Addressing the length of time preceding the application during which the
proposed intervenor knew or should have known about their interest in this case, the
Cramer appellees submitted with the trial court the affidavit of one of the Cramer
appellees, Betty Kelly. This affidavit was filed with the trial court on February 14, 2018
along with the Cramer appellees’ response to the Kearns appellants’ motion for summary
judgment. This affidavit states that appellee Betty discussed this action in 2015 with many
family members, including her cousin Eileen Eberle. (Aff. of B. Kelly ¶ 5-6). It also states
that appellee Betty discussed this action with one of the Kearns appellants, Penny
Hersman, at Eileen’s funeral in early 2016. (Aff. of B. Kelly ¶ 8). Based on this affidavit,
at least one of the Kearns appellants had independent knowledge of this action for over
a year before they filed the motion to intervene.
       {¶40} But the Kearns appellants argue that this affidavit should not be considered
because it was not sworn before a notary public. This is not accurate. The affidavit filed
with the trial court has an appropriate notary seal. Because there is evidence that one of
the Kearns appellants had knowledge of this action for over one year prior to filing the
motion to intervene, this factor does not weigh in favor of intervention.
       {¶41}   Addressing prejudice to the original parties, according to the motion to
intervene, the Pabin appellees originally consented to the Kearns appellants’ intervention,
which indicates a lack of prejudice to the Pabin appellees. The Pabin appellees do not
dispute their consent to the intervention. Also, the Kearns appellants’ intervention would
have no effect on any of the defendants claiming an interest in the Ward reservation as
the Kearns appellants only claimed an interest in the Eberle reservation.
       {¶42} As for the other defendants claiming an interest in the Eberle reservation,
at the time the motion to intervene was filed, there was no indication of prejudice. No
other defendant filed a cross-claim seeking the Kearns appellants’ interest in the Eberle
reservation. The pleadings indicate that the defendants only wanted to preserve their
respective interests in the Eberle reservation, including the Cramer appellees. Moreover,



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                                                                                     – 10 –


on August 29, 2017, about one week after the trial court granted the Kearns appellants’
intervention, the Cramer appellees filed a response to the Pabin appellees’ motion for
default judgment.   In this response, the Cramer appellees argued that “[e]ach non-
answering defendant must remain in possession of any right, title, and interest they
possess in the underlying property despite inaction to answer.” (emphasis added).
Therefore, this element weighs in favor of intervention.
       {¶43} Addressing the existence of unusual circumstances militating against or in
favor of intervention, the trial court vacated its original ruling on summary judgment
motions and subsequently issued a new dispositive motion schedule. Moreover, when
the trial court initially ruled on summary judgment motions on October 17, 2017, there is
no indication in the record that it intended to declare the Kearns appellants as non-
answering defendants.
       {¶44}   Additionally, the Kearns appellants argue this case is similar to Richards
v. Hilligas, 7th Dist. Harrison No. 14 HA 2, 2017-Ohio-4277. Richards concerned a quiet
title action to oil and gas rights in Harrison County, Ohio. About one month before the
dispositive motion deadline, Lower Valley, LLC moved to intervene in the action arguing
that it was the true holder of the mineral interests. Id. at ¶ 6. After a hearing, the trial
court denied the motion. Id.
       {¶45}   Lower Valley appealed arguing that even though its members knew of the
action and wanted to “sit back and see what happens,” the appellees in that action knew
Lower Valley asserted a claim to the minerals and Lower Valley should have been
permitted to litigate the matter. Id. at ¶ 12. This court held that Lower Valley’s motion
was timely for four reasons. One reason was because even though some of Lower
Valley’s members knew of the action, they were laypeople who did not understand the
implication of failing to intervene. Id. at ¶ 16. In this case, pursuant to Richards, the
Kearns appellants are lay people who did not understand the implication of failing to
intervene.
       {¶46} Additionally, the Kearns appellants’ interest could have been adequately
represented by the Cramer appellees. But it was not until the first set of motions for
summary judgment when the Cramer appellees indicated that they sought the Kearns




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                                                                                          – 11 –


appellants’ interest in the Eberle reservation. Therefore, the unusual circumstances in
this case weigh in favor of intervention.
        {¶47}   In conclusion, the Kearns appellants satisfied the elements of intervention
as of right and the trial court abused its discretion when it vacated the Kearns appellants’
intervention.
        {¶48}   Accordingly, the Kearns appellants’ third assignment of error has merit and
is sustained.
        {¶49} The Kearns appellants’ second assignment of error states:

                THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT
        GRANTED DEFAULT JUDGMENT TO THE [CRAMER] APPELLEES.

        {¶50}   The Kearns appellants argue that it was improper for the trial court to grant
their interest in the Eberle reservation to the Cramer appellees via default judgment
because the Cramer appellees never filed a cross-claim in this action.
        {¶51}   The decision to grant default judgment is reviewed under an abuse of
discretion standard. See McEnteer v. Moss, 9th Dist. Summit Nos. Civ.A. 22201, Civ.A.
22220, 2005-Ohio-2679, ¶ 6 quoting Natl. City Bank v. Shuman, 9th Dist. Summit No
21484, 2003-Ohio-6116.
        {¶52} Default judgments are governed by Civ.R. 55 which provides, in relevant
part:

        When a party against whom a judgment for affirmative relief is sought has
        failed to plead or otherwise defend as provided by these rules, the party
        entitled to a judgment by default shall apply in writing or orally to the court
        therefor; * * *. If the party against whom judgment by default is sought has
        appeared in the action, he (or, if appearing by representative, his
        representative) shall be served with written notice of the application for
        judgment at least seven days prior to the hearing on such application. If, in
        order to enable the court to enter judgment or to carry it into effect, it is
        necessary to take an account or to determine the amount of damages or to
        establish the truth of any averment by evidence or to make an investigation



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                                                                                        – 12 –


       of any other matter, the court may conduct such hearings or order such
       references as it deems necessary and proper and shall when applicable
       accord a right of trial by jury to the parties.

Civ.R. 55(A).
       {¶53}    The Cramer appellees filed a motion for leave to plead on February 16,
2016 and filed their answer on May 5, 2016. The Cramer appellees’ answer does not
contain a cross-claim against any defendant. Their answer seeks the relief of, among
other things, “[t]itle to the subject minerals be quieted to Defendants in the amount of their
respective interest.” At no point did the Cramer appellees file an amended answer, cross-
claim, or seek as relief shares of the Eberle reservation belonging to any other interest
holder.
       {¶54}    The Cramer appellees did file two separate motions for summary
judgment. The first one dated July 25, 2017 argued that they are entitled to the mineral
interests belonging to non-answering defendants pursuant to R.C. 2721.02(A) and R.C.
5303.01. But the ruling on this motion, the October 17, 2017 judgment entry, was vacated
by the trial court on November 8, 2017. In the Cramer appellees’ second motion for
summary judgment dated January 31, 2018, they again argued that the Kearns appellants
were non-answering defendants and therefore, the Kearns appellants’ interest in the
Eberle reservation vested in them.
       {¶55}    Despite the fact that both of the Cramer appellees’ motions for summary
judgment sought the Kearns appellants’ interest in the Eberle reservation, the Kearns
appellants argue that it was improper for the trial court to award their interest in the Eberle
Reservation to the Cramer appellees because the Cramer appellees did not request such
relief in their answer. In support of this argument, the Kearns appellants cite Civ.R. 54(C)
which says “[a] judgment by default shall not be different in kind from or exceed in amount
that prayed for in the demand for judgment.”
       {¶56}    In further support, the Kearns appellants cite this court’s decision in State
ex rel. DeWine v. A & L Salvage, 7th Dist. Columbiana No. 11 CO 39, 2013-Ohio-664. In
DeWine, the State of Ohio brought a civil action against A & L seeking damages the state
incurred after closing an A & L facility for Ohio EPA violations. Id. at ¶ 5-7. The state’s
amended complaint sought monetary damages for numerous violations as well as “any


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further relief that is necessary.” Id. at ¶ 7. After A & L failed to file a responsive pleading,
the state moved for default judgment. Id. at ¶ 8. The motion for default judgment
requested a later hearing to determine an appropriate civil penalty as well as “all
payments, signing bonuses and royalties received from the A & L Salvage landfill * * *
which would specifically include all oil, gas, coal and mineral rights royalties.” Id. The
trial court granted the state’s motion for default judgment and set a future hearing on the
civil penalty. Id. at ¶ 9. After the civil penalty hearing, in addition to monetary damages,
the trial court ordered A & L to transfer and record a 99-year lease of all oil, gas, coal,
and/or mineral rights to the property at issue in favor of the Ohio EPA. Id. at ¶ 10.
       {¶57}    A & L appealed arguing, among other things, that the award of the 99-year
lease violated Civ.R. 54(C) because the state’s amended complaint did not seek such a
lease as part of its relief. Id. at ¶ 24-26. The state’s amended complaint sought as relief
“any and all payments, signing bonus[es], and royalties” A & L received, which included
mineral, oil, and gas royalties. Id. at ¶ 24.
       {¶58}    This court held that the award of the 99-year lease to the state was error
for three reasons. Relevant to this appeal, this court concluded that the lease was a
violation of Civ.R. 54(C) because it was an award different in kind from what the state
prayed for in its amended complaint. Id. at ¶ 29.
       {¶59}    The Cramer appellees argue that Civ.R. 54(C) does not apply because the
Kearns appellants neglected defending this action. This argument does not have merit.
Civ.R. 54(C) provides that “[a] judgment by default shall not be different in kind from or
exceed in amount that prayed for in the demand for judgment.” A default judgment is a
judgment against a party who has failed to plead or otherwise defend an action. Civ.R.
55(A). Because the trial court granted default judgment against the Kearns appellants in
favor of the Cramer appellees, Civ.R. 54(C) does apply.
       {¶60} At no point during this action did the Cramer appellees file a cross-claim
against the Kearns appellants seeking declaratory judgment or quiet title. The only time
the Cramer appellees sought any kind of judgment against the Kearns appellants was in
motions for summary or default judgment.           Moreover, in their answer, the Cramer
appellees requested: the complaint be dismissed with prejudice, title to the subject
minerals be quieted to Defendants in the amount of their respective interest, defendants



Case Nos. 18 MO 0008; 18 MO 0009
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be awarded damages in an amount to be determined at trial, and defendants be awarded
costs and reasonable attorney’s fees. They did not request that the Kearns appellants’
interest in the Eberle reservation be declared abandoned or extinguished and vested in
the Cramer appellees. Thus, the trial court erred in granting the Cramer appellees the
Kearns appellants’ interest in the Eberle reservation. Civ.R. 54(C) does not permit an
award different in kind than what the Cramer appellees sought.
        {¶61}   Since the trial court’s award of the Kearns appellants’ interest in the Eberle
reservation in favor of the Cramer appellees was different in kind from what the Cramer
appellees sought in their pleadings, the trial court abused its discretion when it quieted
title in favor of the Cramer appellees to the detriment of the Kearns appellants
        {¶62}   Accordingly, the Kearns appellants’ second assignment of error has merit
and is sustained.
        {¶63}   The Kearns appellant’s first assignment of error states:

                THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
        DENIED THE MOTION TO VACATE.

        {¶64} The Kearns appellants’ fourth assignment of error states:

                THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT
        DENIED APPELLANTS’ MOTION FOR SUMMARY JUDGMENT.

        {¶65}   Based on our resolution of the Kearns appellants’ second and third
assignments of error, the Kearns appellants’ first and fourth assignments of error are
moot.
        {¶66} The trial court erred in vacating its judgment permitting the Kearns
appellants’ intervention. The Kearns appellants should have been permitted to intervene
in this action as set out above.
        {¶67} Moreover, the Cramer appellees do not have a valid claim in this case to
the Kearns appellants’ interest in the Eberle reservation as they never filed a cross-claim.
The trial court erred in quieting title in favor of the Cramer appellees to the detriment of
the Kearns appellants.




Case Nos. 18 MO 0008; 18 MO 0009
                                                                                     – 15 –


      {¶68}    We now turn to the Cameron appellants’ assignment of error and a
supplemental recitation of the facts and events relevant to their appeal. After Ella Eberle
died, Emmet Huffman owned the surface rights to the property as well as 1/4 of the Eberle
reservation.
      {¶69}    At some point in time, Emmet Huffman died testate. Emmet’s last will and
testament dated September 12, 1968, left all property to Stella Huffman.
      {¶70}    On May 11, 1976, Stella Huffman sold her rights in the property to Kenneth
Huffman via the Huffman deed. The Huffman deed did not create a new oil and gas
reservation. But the Huffman deed excepted and reserved the coal sold by prior grantors
and excepted the oil and gas royalty reserved or excepted by prior grantors.
      {¶71}    On April 12, 1982, Kenneth Huffman sold his interests in the property to
Chester Pabin via the Chester deed. The Chester deed contained no new reservations.
But the Chester deed was subject to other reservations created by previous grantors.
      {¶72}    On May 19, 1999, Chester Pabin sold his interests in the property to the
Pabin appellees via the Pabin deed.
       {¶73}   After the Pabin appellees filed this action, the Cameron appellants filed
their answer and counterclaim. Donald and Gloria Cameron are their heirs to Stella
Huffman. ODMA Resources claimed Donald and Gloria assigned it the interest in the
Eberle reservation that was previously owned by Emmett and Stella Huffman.
       {¶74}   The Cameron appellants filed a motion for summary judgment on
November 3, 2017. They argued that there was no genuine issue of material fact that
Stella Huffman reserved her share of the Eberle reservation in the Huffman deed. They
argued that because Stella reserved her interest in the Eberle reservation, Kenneth
Huffman could not have transferred said interest to Chester Pabin via the Chester deed
and Chester Pabin could not have transferred said interest to the Pabin appellees via the
Pabin deed.
       {¶75}   In the trial court’s April 26, 2018 judgment entry, it held that the entire
Eberle reservation vested in the Pabin appellees and the Cramer appellees. As for Stella
Huffman’s 1/4 interest of the Eberle reservation, the trial court held that it was owned by
the Pabin appellees. The trial court noted that in a subsequent transaction, the Pabin
appellees sold 50% of what was Stella Huffman’s interest of the Eberle reservation to the



Case Nos. 18 MO 0008; 18 MO 0009
                                                                                     – 16 –


Cramer appellees. The distribution of what was Stella Huffman’s share of the Eberle
reservation was as follows: 50% to the Pabin appellees, 12.5% to Gerald and Mary Ella
Cramer, 12.5% to Betty and Edgar Kelly, 12.5% to Judy Eberle, and 12.5% to Paul Jr.
and Karen Eberle.
       {¶76} The Cameron appellants timely filed a notice of appeal on May 25, 2018.
They now raise one assignment of error.
       {¶77} The Cameron appellants’ sole assignment of error states:

               THE TRIAL COURT ERRED WHEN IT HELD THAT APPELLANTS’
       OIL AND GAS INTEREST AND ROYALTY INTERESTS WERE
       TRANSFERRED IN THE DEED FROM STELLA HUFFMAN TO KENNETH
       HUFFMAN IN 1976.

       {¶78}   The Cameron appellants argue that the trial court erred when it held Stella
Huffman transferred her interest in the Eberle reservation to Kenneth Huffman via the
Huffman deed. They argue that Stella Huffman explicitly reserved her interest in the
Eberle reservation in the Huffman deed.
       {¶79}   An appellate court reviews a trial court’s summary judgment decision de
novo, applying the same standard used by the trial court. Ohio Govt. Risk Mgt. Plan v.
Harrison, 115 Ohio St.3d 241, 2007-Ohio-4948, 874 N.E.2d 1155, ¶ 5. A motion for
summary judgment is properly granted if the court, upon viewing the evidence in a light
most favorable to the nonmoving party, determines that: (1) there are no genuine issues
as to any material facts; (2) the movant is entitled to judgment as a matter of law, and (3)
the evidence is such that reasonable minds can come to but one conclusion and that
conclusion is adverse to the opposing party. Civ.R. 56(C); Byrd v. Smith, 110 Ohio St.
3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 10.
       {¶80}   Summary judgment is appropriate when there is no genuine issue as to
any material fact. A “material fact” depends on the substantive law of the claim being
litigated. Hoyt, Inc. v. Gordon & Assoc., Inc., 104 Ohio App.3d, 598, 603, 662 N.E.2d
1088 (8th Dist.1995), citing Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 247-248, 106
S.Ct. 2505, 91 L.Ed.2d 202 (1986).




Case Nos. 18 MO 0008; 18 MO 0009
                                                                                     – 17 –


       {¶81} The Cramer appellees argue that the Cameron appellants waived this
assignment of error by not filing a timely motion for summary judgment. The trial court
issued its original ruling on dispositive motions on October 17, 2017. The trial court then
vacated that ruling and issued a new dispositive motion schedule on November 8, 2017.
The Cameron appellants did not file their motion for summary judgment until November
3, 2017.
       {¶82} Civ.R. 56(A) provides that “[a] party may move for summary judgment at
any time after the expiration of the time permitted under these rules for a responsive
motion or pleading by the adverse party * * *.” The Cameron appellants’ motion was filed
five days before the trial court issued a new dispositive motion schedule. Therefore, it
was timely filed.
       {¶83}   The trial court held that, upon Ella Eberle’s death, Emmett Huffman owned
the surface rights to the property as well as 1/4 of the Eberle reservation. The trial court
then held that Emmett Huffman’s interest in the Eberle reservation merged with the
surface upon Ella Eberle’s death.      Upon Emmett Huffman’s death, Stella Huffman
inherited the merged surface and 1/4 of the Eberle reservation. The trial court held that
because the Huffman deed from Stella Huffman to Kenneth Huffman did not contain a
new reservation, Stella Huffman sold the mineral interests to Kenneth Huffman. Kenneth
Huffman later sold his interest to Chester Pabin via the Chester deed and Chester sold
his interests to the Pabin appellees via the Pabin deed.
       {¶84}   A copy of the Huffman deed was attached to the Pabin appellees’ January
31, 2018 motion for summary and default judgment as exhibit C. The Huffman deed
contains two mineral reservations. The first states “EXCEPTING AND RESERVING the
coal heretofore sold by prior Grantors.” The second states “EXCEPTING the oil and gas
royalty reserved or excepted by prior Grantors.”
       {¶85}   The Cameron appellants argue the Huffman deed expressly reserved the
oil and gas royalty of the property in favor of Stella Huffman and, therefore, said royalty
did not transfer to Kenneth Huffman. The Cramer appellees argue that the surface rights
and Emmett Huffman’s interest in the Eberle reservation merged and the Huffman deed
did not create a new reservation.




Case Nos. 18 MO 0008; 18 MO 0009
                                                                                    – 18 –


       {¶86}   This court explained the elements of merger in Headley v. Ackerman, 7th
Dist. Monroe No. 16 MO 0010, 2017-Ohio-8030. In Headley, this court held that in order
to constitute a merger, “two estates must be in one and the same person, at one and the
same time, and in one and the same right.” Id. at ¶ 32. “The question of whether there
will be a merger of a lesser and greater estate under circumstances which might permit
a merger is a matter of intention and substantial justice.” Id.
       {¶87}   The Cramer appellees argue that there were two instances where Emmett
Huffman’s share of the Eberle reservation merged with the surface. The first was upon
Ella Eberle’s death. The second, alternatively, was upon Emmett Huffman’s death.
       {¶88}   Addressing Ella Eberle’s death, upon her death, Emmett Huffman became
the owner of the surface rights and 1/4 of the Eberle reservation. While the surface and
a portion of the Eberle reservation existed in Emmett Huffman at the same time, there
was no intent to merge the surface and Emmett’s 1/4 of the Eberle reservation as Ella
Eberle died intestate. There is also no indication in the record that Emmett Huffman
recorded anything indicating that the surface and his 1/4 of the Eberle reservation were
to merge.
       {¶89}   Addressing Emmett Huffman’s death, his last will and testament dated
September 12, 1968 contained only one bequest; that Stella Huffman receive “absolutely
and in fee simple, all the property, real and personal, of every kind and description
wheresoever situate, which I may own or have the right to dispose of at the time of my
decease.” This satisfies the elements of merger as the surface rights and 1/4 of the
Eberle reservation existed in Stella Huffman at the same time. Emmett Huffman’s will
also expressed his intent for the surface and his share of the Eberle reservation to exist
in the same person at the same time. As such, Stella Huffman’s portion of the Eberle
reservation merged with the surface upon Emmett Huffman’s death.
       {¶90}   With Stella’s portion of the Eberle reservation merged with the surface,
Stella would need a new reservation in any future conveyances to retain the oil and gas
rights to the property. But the Huffman deed does not contain any new reservations. The
Huffman deed contains two tracts of land. The first tract contains two exceptions. The
first states “EXCEPTING AND RESERVING the coal heretofore sold by prior Grantors.”
The second states “EXCEPTING the oil and gas royalty reserved or accepted by prior



Case Nos. 18 MO 0008; 18 MO 0009
                                                                                     – 19 –


Grantors.” Neither of these are a reservation of the oil and gas rights in favor of Stella
Huffman.
       {¶91}   The second tract of land contains one reservation. It states “EXCEPTING
AND RESERVING from this deed 0.75 acre, more or less, as conveyed by Lewis Eberle
and Ella Eberle, husband and wife, to John Gillespie by Warranty Deed dated April 12,
1913 * * *.” This is also not an oil and gas reservation in favor of Stella Huffman. Because
Stella Huffman did not reserve an interest in the minerals or oil and gas in the property,
Stella sold her entire interest in the property to Kenneth Huffman via the Huffman deed.
As neither the Chester deed nor the Pabin deed expressly reserved an oil and gas royalty,
the Pabin appellees were owners of Stella Huffman’s portion of the Eberle reservation.
       {¶92}   Accordingly, the Cameron appellants’ sole assignment of error lacks merit
and is overruled.
       {¶93}   For the reasons stated above, the trial court’s judgment regarding the
Cameron appellants is hereby affirmed. The trial court’s judgment vacating the Kearns
appellants’ intervention is hereby reversed. The Kearns appellants are permitted to
intervene. The trial court’s judgment quieting title in favor of the Cramer appellees to the
detriment of the Kearns appellants is also hereby reversed. Judgment is entered in favor
of the Kearns appellants quieting title to their 1/4 of the Eberle reservation.
       {¶94} The total distribution of the Eberle reservation is as follows: the Cramer
appellees own a collective total of 62.5% of the Eberle reservation; the Kearns appellants
own a collective total of 25% of the Eberle reservation; and the Pabin appellees own a
collective total of 12.5% of the Eberle reservation.

Waite, P. J., concurs.

D’Apolito, J., concurs.




Case Nos. 18 MO 0008; 18 MO 0009
[Cite as Pabin v. Eberle, 2019-Ohio-2728.]




         For the reasons stated in the Opinion rendered herein, the Cameron appellants’
 sole assignment of error lacks merit and is overruled. The Kearns appellants’ second
 and third assignments of error have merit and are sustained. The Kearns appellants’
 first and fourth assignments of error are moot. It is the final judgment and order of this
 Court that the judgment of the Court of Common Pleas of Monroe County, Ohio is
 hereby affirmed as it pertains to the Cameron appellants and reversed as it pertains to
 the Kearns appellants. The Kearns appellants are permitted to intervene and judgment
 is hereby entered in their favor quieting title to their 1/4 of the Eberle reservation. In
 Case No. 18 MO 0008, costs are taxed to the Cameron appellants. In Case No. 18 MO
 0009, costs are taxed to the Cramer appellees.


         A certified copy of this opinion and judgment entry shall constitute the mandate
 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
 a certified copy be sent by the clerk to the trial court to carry this judgment into
 execution.




                                        NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
