[Cite as Pike v. Piatt,
2016-Ohio-5041.]
STATE OF OHIO, MONROE COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
JEFFREY D. PIKE and ) CASE NO. 16 MO 0007
MINDI A. PIKE TRUST, et al. )
)
PLAINTIFFS-APPELLEES )
)
VS. ) OPINION AND
) JUDGMENT ENTRY
MAXINE PIATT, et al. )
)
DEFENDANTS-APPELLANTS )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas of Monroe County, Ohio
Case No. CV 2014-153
JUDGMENT: Dismissed.
APPEARANCES:
For Plaintiffs-Appellees: Atty. Ethan Vessels
Atty. Olivia Walker
Fields, Dehmlow & Vessels
309 Second Street
Marietta, Ohio 45750
For HG Energy, LLC: Atty. Michael Buell
Buell & Sipe Co, LPA
322 Third Street
Marietta, Ohio 45750
For Defendants-Appellants: Atty. Matthew W. Warnock
Atty. Daniel C. Gibson
Atty. Daniel E. Gerken
Bricker & Eckler, LLP
100 South Third Street
Columbus, Ohio 43215
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: July 11, 2016
[Cite as Pike v. Piatt, 2016-Ohio-5041.]
PER CURIAM.
{¶1} Defendants-Appellants Maxine Piatt, et al. appeal a determination of
the Monroe County Common Pleas Court denying their motion to vacate that court’s
decision holding their mineral interests in the subject property had vested in the
Plaintiffs-Appellees Jeffrey D. Pike and Mindi A. Pike Trust, Jeffrey Pike and Mindi
Pike, Trustees, et al. as surface owners after applying the 1989 Ohio Dormant
Mineral Act. Appellees have filed a motion to dismiss and Appellants have filed a
memorandum in opposition. Because the Civ.R. 60(B) motion to vacate filed by
Appellants below served only as an attempt to substitute for a timely appeal, this
appeal is dismissed.
{¶2} This case began as a quiet title action involving the Ohio Dormant
Mineral Act (“ODMA”). Appellees own a 40-acre parcel of property in Monroe
County, Ohio. The mineral interests had been severed from the property in 1961 and
were sold to Appellants’ predecessors-in-interest. Appellees filed a quiet title action
arguing that no savings events had occurred in 20 years and that they, as the surface
owners, should now be the owners of the mineral rights to the property.
{¶3} Appellants argued that two savings events had occurred, that the 2006
ODMA applied rather than the 1989 ODMA, and that the 1989 ODMA is not self-
executing. The trial court granted summary judgment to Appellees on April 9, 2015,
and held that the 1989 ODMA applied, no savings events had occurred, and the
mineral interests vested in Appellees as the surface owners.
{¶4} Appellants did not appeal that decision. Rather, nearly a year later on
March 18, 2016, Appellants filed a Civ.R. 60(B) motion to vacate, explicitly conceding
-2-
that the motion was filed as result of “clerical missteps” which they argued constituted
excusable neglect resulting in the failure to file an appeal. The trial court denied
Appellants’ motion to vacate and this appeal followed. Appellees have filed a motion
to dismiss and Appellants have filed a memorandum in opposition.
{¶5} Appellees argue that Appellants filed their Civ.R. 60(B) motion to vacate
below as a substitute for a timely appeal of the trial court’s April 9, 2015 judgment
entry. In response, Appellants argue that they are currently appealing only the trial
court’s March 18, 2016 decision denying their motion to vacate.
{¶6} In order to prevail on a motion for relief from judgment under Civ.R.
60(B), the movant must demonstrate three prongs of the GTE test, which are: (1) a
meritorious claim or defense; (2) entitlement to relief under one of the five grounds
listed in the rule; and (3) the timeliness of the motion. GTE Automatic Elec., Inc. v.
ARC Indus., Inc., 47 Ohio St.2d 146, 150-151,
351 N.E.2d 113 (1976). This Court
will not disturb a trial court’s decision concerning motions filed pursuant to Civ.R.
60(B) absent an abuse of discretion. Rose Chevrolet, Inc. v. Adams,
36 Ohio St.3d
17, 20,
520 N.E.2d 564 (1988). An abuse of discretion connotes an attitude by the
court that is arbitrary, unconscionable, or unreasonable. Blakemore v. Blakemore,
5
Ohio St.3d 217,
450 N.E.2d 1140 (1983).
{¶7} The grounds for relief under Civ.R. 60(B) are:
(1) mistake, inadvertence, surprise or excusable neglect; (2) newly
discovered evidence which by due diligence could not have been
discovered in time to move for a new trial under Rule 59(B); (3) fraud
-3-
(whether heretofore denominated intrinsic or extrinsic),
misrepresentation or other misconduct of an adverse party; (4) the
judgment has been satisfied, released or discharged, or a prior
judgment upon which it is based has been reversed or otherwise
vacated, or it is no longer equitable that the judgment should have
prospective application; or (5) any other reason justifying relief from the
judgment.
{¶8} Appellants’ March 18, 2016 motion for relief from judgment cited to
Civ.R. 60(B)(1). Counsel for Appellants claimed excusable neglect and inadvertent
mistake led to their failure to appeal the trial court’s decision. Despite acknowledging
that they had received the trial court’s decision stamped “FINAL APPEABLE
ORDER,” counsel for Appellants set forth a detailed explanation that their law firm,
through “clerical missteps,” did not subsequently appeal that decision.
{¶9} This Court has expressly held that “[a] Civ.R. 60(B) motion for relief
from judgment cannot be used as a substitute for a timely appeal or as a means to
extend the time for perfecting an appeal from the original judgment.” (Emphasis
deleted.) Hamilton v. Spirtos, 7th Dist. No. 01-C.A.-58, 2002-Ohio-1562, ¶ 30, citing
Key v. Mitchell,
81 Ohio St.3d 89, 90-91,
689 N.E.2d 548 (1998). Any claims or
arguments that were not raised in a timely appeal, but which could have been raised,
are precluded from being raised in a subsequent Civ.R. 60(B) motion.
Id. at 91,
689
N.E.2d 548. As the Ohio Supreme Court held in State ex rel. Durkin v. Ungaro,
39
Ohio St.3d 191,
529 N.E.2d 1268 (1988):
-4-
Such procedural devices cannot be used in order to obtain review of a
judgment where a timely appeal was not filed. If we were to hold
differently, judgments would never be final because a party could
indirectly gain review of a judgment from which no timely appeal was
taken by filing a motion for reconsideration or a motion to vacate
judgment.
Id. at 193,
529 N.E.2d 1268.
{¶10} “When a Civ.R. 60(B) motion is used as a substitute for a timely appeal,
and when the denial of that motion is subsequently appealed, the proper response is
the dismissal of the appeal. ” Hamilton, supra, at ¶ 35, citing State ex rel. Richard v.
Cuyahoga Cty. Commrs., 89 Ohio St.3d 205,
729 N.E.2d 755 (2000); Key v. Mitchell,
81 Ohio St.3d 89, 91,
689 N.E.2d 548 (1998); and State ex rel. Durkin v. Ungaro,
39
Ohio St.3d 191,
529 N.E.2d 1268 (1988). In this instance, counsel for Appellants
acknowledged that the Civ.R. 60(B) motion was filed as a result of their failure to
timely file a notice of appeal. Accordingly, we hereby dismiss this appeal. Costs to
be taxed against Appellants.
Waite, J., concurs.
Donofrio, P.J., concurs.
DeGenaro, J., concurs.
