[Cite as Lucas v. Whyte,
2021-Ohio-222.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MONROE COUNTY
SANDRA K. LUCAS,
Plaintiff-Appellee,
v.
MARILYN MILLER WHYTE ET AL.,
Defendants-Appellants.
OPINION AND JUDGMENT ENTRY
Case No. 19 MO 0022
Civil Appeal from the
Court of Common Pleas of Monroe County, Ohio
Case No. 2018-416
BEFORE:
Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.
JUDGMENT:
Affirmed
Atty. Gregory Watts, Atty. Matthew Onest, Atty. Wayne Boyer, Krugliak, Wilkins, Griffiths
& Dougherty, 4775 Munson Street, N.W., P.O. Box 36963, Canton, Ohio 44735, for
Plaintiff-Appellee and
Atty. Kyle Bickford, Atty. Erik Schramm, Jr., Hanlon, Estadt, McCormick & Schramm
Co., 46457 National Road West, St. Clairsville, Ohio 43950, for Defendants-Appellants.
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Dated: January 22, 2021
DONOFRIO, J.
{¶1} Defendants-appellants, George L. Miller, Marilyn Miller Whyte, George
Trigg, John D. Miller, Ruth Campbell, Donald Miller, and David Easter, appeal from a
Monroe County Common Pleas Court judgment denying their motion for summary
judgment and granting the motion for summary judgment in favor of plaintiff-appellee,
Sandra Lucas.
{¶2} In 1914, John D. Miller and Sarah Emma Miller owned a 25 acre tract of
land situated in Sunsbury Township, Ohio (the property). On August 14, 1914, they
conveyed the property by warranty deed to John McCoy (the Miller deed). In the Miller
deed, John and Sarah reserved one-half of all the oil and gas and all of the coal underlying
the property (the Miller reservation).
{¶3} On March 27, 1940, John died intestate. The Belmont Count Probate
Court handled the probate of his estate. On August 15, 1940, the Belmont County
Probate Court sent the Monroe County Recorder a certificate of transfer of John’s real
estate. This certificate indicated that all real estate held by John, including his interest in
the Miller reservation, was transferred to the following people: 1/3 to Sarah and 2/15 each
to William Miller, George W. Miller, Nancy Ruth Trigg, John M. Miller, and Donald Miller.
{¶4} Appellants are the current heirs to John and Sara, William Miller, George
W. Miller, Nancy Ruth Trigg, John M. Miller, and/or Donald Miller.1 They claim an
ownership interest in the Miller reservation.
{¶5} Appellee acquired sole possession to the surface of the property through
three separate transactions. The first transaction was by a quit-claim dated August 4,
1966 and recorded on August 12, 1966, where W.M. and Mary Stephens conveyed to
appellee and her husband, William Lucas, the surface of the property. The second
transaction was by a warranty deed dated November 6, 2009, where appellee and William
1 Appellants filed a suggestion of death on April 8, 2020 notifying this court that appellant George L. Miller
had died and moved to substitute him with the personal representative of his estate, Alice L. Birney.
Case No. 19 MO 0022
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Lucas gave each other joint survivorship rights to the property. The third was by an
affidavit of transfer dated April 19, 2010, where appellee averred that she was the sole
owner of the surface of the property due to William Lucas’ death earlier that year.
{¶6} On October 3, 2013, appellee published a notice of intent to declare the
Miller reservation abandoned. On November 7, 2013, appellee filed an affidavit of
abandonment of the Miller reservation. On December 16, 2013, appellee filed a notice of
abandonment of the Miller reservation.
{¶7} On October 12, 2018, appellee filed her complaint seeking to quiet title to
the property of any outstanding oil and gas interests. Appellee’s complaint alleged that
appellants’ interest in the Miller reservation was both extinguished under Ohio’s
Marketable Title Act (MTA) and abandoned under Ohio’s Dormant Mineral Act (DMA).
{¶8} Appellee served notice of the complaint on all interest holders by
publication except for appellant Marilyn Miller Whyte. Appellee served her notice by
certified mail.
{¶9} Appellants filed an answer and affirmative defenses. Among their
affirmative defenses, appellants asserted that the MTA conflicted with the DMA and the
DMA was the sole method to terminating oil and gas interests, appellee failed to exercise
reasonable diligence in serving appellants with the notice of abandonment pursuant to
the DMA, and appellee’s claims were “barred by the muniments in the chain of title.”
{¶10} Both parties filed motions for summary judgment.
{¶11} Appellants’ motion argued that appellee’s DMA claim failed as a matter of
law because appellee did not attempt to serve appellants with the notice of abandonment
by certified mail and only served it on appellants by publication. As for appellee’s MTA
claim, appellants first argued that the DMA directly conflicts with the MTA and the DMA,
as the specific statute, controlled the outcome of this action. Alternatively, they argued
that the MTA did not extinguish their interest in the Miller reservation because their
interest in the Miller reservation was subject to five title transactions and appellee did not
have a valid root of title instrument.
{¶12} Along with their motion for summary judgment, appellants submitted two
affidavits. The first is the affidavit of Kyle Bickford, appellants’ attorney. Bickford’s
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affidavit contained numerous exhibits that were incorporated into appellants’ motion for
summary judgment. The second affidavit was from appellant Ruth Campbell.
{¶13} Appellee’s summary judgment motion argued that this court has
consistently held that the MTA and the DMA both apply to oil and gas interests. With
regard to her MTA claim, appellee argued that her root of title was her August 4, 1966
quit-claim deed and that deed only contained a general reference to the Miller reservation
without any specific identification of a recorded title transaction. She also argued that
between August 4, 1966 and April 19, 2010, the Miller reservation was not subject to any
MTA exceptions. With regard to her DMA claim, appellee argued that for the 20 years
prior to her initiating the abandonment procedure, the Miller reservation was not subject
to a title transaction and no savings event occurred to prevent it from being declared
abandoned.
{¶14} Along with her motion for summary judgment, appellee attached her
responses to appellants’ discovery requests. Relevant to this appeal, appellants’ seventh
interrogatory asked appellee to describe the efforts she used to locate, identify, and/or
serve John D. Miller, Sarah Emma Miller, William Miller, George Miller, Nancy Ruth Trigg,
John M. Miller, Donald Miller, or their heirs or assigns with the notice of abandonment by
U.S. certified mail. Appellee responded, in relevant part:
[T]itle was run and an abstract related to the same was produced.
Additionally, Kevin Presley and Shirley Neiswong researched the heirs via
running the heirs’ names on the Monroe County Auditor, Recorder, Clerk of
Courts, and Probate records, as well as utilizing the funeral home records
and other records in possession of the Monroe County Historical Society
and Genealogical Society.
(Appellee’s Motion for Summary Judgment Ex. 1.)
{¶15} On September 24, 2019, the trial court denied appellants’ motion for
summary judgment and granted appellee’s motion for summary judgment. The trial court
held that appellants’ interest in the Miller reservation was extinguished under the MTA
because the reference to the Miller reservation in appellee’s root of title was general and
did not contain any specific identification of a recorded title transaction. The trial court
Case No. 19 MO 0022
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also held that appellants’ interest in the Miller reservation was abandoned under the DMA
because no savings event had occurred, the Miller reservation was not subject to a title
transaction between October 3, 1993 and November 22, 2013, and appellants did not file
a claim to preserve their interests in the Miller reservation after appellee filed her notice
of abandonment.
{¶16} Appellants timely filed their notice of appeal on October 21, 2019. They
now raise two assignments of error.
{¶17} Both assignments of error challenge the trial court’s summary judgment
ruling. Thus, we shall apply the same standard of review to both assignments of error.
{¶18} An appellate court reviews a summary judgment ruling de novo. Comer v.
Risko, 106 Ohio St.3d 185,
2005-Ohio-4559,
833 N.E.2d 712, ¶ 8. Thus, we shall apply
the same test as the trial court in determining whether summary judgment was proper.
{¶19} A court may grant summary judgment only when (1) no genuine issue of
material fact exists; (2) the moving party is entitled to judgment as a matter of law; and
(3) the evidence can only produce a finding that is contrary to the non-moving party.
Mercer v. Halmbacher, 9th Dist. Summit No. 27799, 2015-Ohio-4167, ¶ 8; Civ.R. 56(C).
The initial burden is on the party moving for summary judgment to demonstrate the
absence of a genuine issue of material fact as to the essential elements of the case with
evidence of the type listed in Civ.R. 56(C). Dresher v. Burt,
75 Ohio St.3d 280, 292,
662
N.E.2d 264 (1996). 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).
{¶20} If the moving party meets its burden, the burden shifts to the non-moving
party to set forth specific facts to show that there is a genuine issue of material fact. Id.;
Civ.R. 56(E). “Trial courts should award summary judgment with caution, being careful
to resolve doubts and construe evidence in favor of the nonmoving party.” Welco
Industries, Inc. v. Applied Cos., 67 Ohio St.3d 344, 346,
617 N.E.2d 1129 (1993).
{¶21} Because appellants’ second assignment of error is dispositive, we will
address it first. Appellants’ second assignment of error states:
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THE TRIAL COURT ERRED IN DETERMINING THE SEVERED OIL
AND GAS MINERAL INTEREST IS EXTINGUISHED BY OPERATION OF
THE OHIO MARKETABLE TITLE ACT.
{¶22} Appellants make two arguments in this assignment of error. First, they
argue that the DMA and the MTA are in conflict and the DMA, as the specific statute,
controls over the MTA. Alternatively, appellants argue that the trial court’s judgment
regarding appellee’s MTA claim was erroneous because their interest was subject to
multiple title transactions during the requisite 40-year lookback period.
{¶23} The Ohio Supreme Court recently resolved appellants’ argument that the
DMA and the MTA are in conflict. In West v. Bode, Slip Opinion 2020-Ohio-5473, the
appellants argued that the MTA does not apply to severed interests in oil and gas,
because the more specific DMA supersedes it. The Ohio Supreme Court disagreed. The
Court held there is no irreconcilable conflict between the general provisions of the MTA
as applied to severed mineral interests and the DMA. Id. at ¶ 44. Therefore, both acts
remain in effect. Id. The Court went on to point out that the MTA and the DMA “afford
independent procedures, either of which may be used to effect the termination of a
severed mineral interest, depending on the circumstances of the case and the time that
has elapsed.” Id. The Court reasoned:
[T]he Marketable Title Act and the Dormant Mineral Act operate differently
and after different periods of time. The Marketable Title Act extinguishes
property interests after 40 years without a saving event, measured from the
effective date of the surface owner's root of title; the Dormant Mineral Act
provides a mechanism that a surface owner may use to have a severed
mineral interest deemed abandoned and vested in the surface owner after
a shorter, 20-year period.
Id. at ¶ 28.
{¶24} Thus, the DMA does not control over the MTA. Either or both statutes can
be applied to a severed mineral interest.
Case No. 19 MO 0022
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{¶25} Turning to appellants’ MTA argument, pursuant to R.C. 5301.48, if a
person has an unbroken chain of title of record to any interest in land for 40 or more years,
the person has marketable record title as defined in R.C. 5301.47, subject to the
exceptions listed in R.C. 5301.49. The statute further states: “A person has such an
unbroken chain of title when the official public records disclose a conveyance or other title
transaction, of record not less than forty years at the time the marketability is to be
determined, which said conveyance or other title transaction purports to create such
interest” in the person or one of his predecessors in title “with nothing appearing of record
to divest” him of the purported interest. R.C. 5301.48.
{¶26} A marketable record title “operates to extinguish” all interests existing prior
to the root of title. R.C. 5301.47(A), citing R.C. 5301.50. The root of title is the
“conveyance or other title transaction in the chain of title of a person, purporting to create
the interest claimed by such person, upon which he relies as a basis for the marketability
of his title, and which was the most recent to be recorded as of a date forty years prior to
the time when marketability is being determined.” R.C. 5301.47(E). Pursuant to R.C.
5301.50, subject to R.C 5301.49, the record marketable title shall be held free and clear
of all interests which depend upon events occurring prior to the effective date of the root
of title.
{¶27} Record marketable title is subject to certain exceptions listed in R.C.
5301.49. Appellants argue that their interest in the Miller reservation was preserved by
operation of R.C. 5301.49(D). Pursuant to this exception, record marketable title is
subject to:
Any interest arising out of a title transaction which has been recorded
subsequent to the effective date of the root of title from which the unbroken
chain of title or record is started; provided that such recording shall not
revive or give validity to any interest which has been extinguished prior to
the time of the recording by the operation of section 5301.50 of the Revised
Code[.]
R.C. 5301.49(D).
Case No. 19 MO 0022
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{¶28} It is undisputed that appellee’s root of title is the August 4, 1966 quit-claim
deed from W.M. and Mary Stephens to appellee and her husband conveying the surface
of the property.
{¶29} Appellants argue that their interest in the Miller reservation has been the
subject of three probate filings during the 40-year look-back period, which preserved their
interest pursuant to R.C. 5301.49(D). The three probate filings are: (1) the estate of
Donald F. Miller recorded on July 5, 1989; (2) the estate of June Ann Miller recorded on
December 21, 1999; and (3) the death of Nancy Ruth Trigg on June 17, 1986. “[A]
probate court judgment would satisfy the recording element of R.C. 5301.49(D).” Pollock
v. Mooney, 7th Dist. Monroe No. 13 MO 9, 2014-Ohio-4435, ¶ 26.
{¶30} The record does not contain any filings related to the estate of Nancy Ruth
Trigg. As there is nothing in the record related to the estate of Nancy Ruth Trigg, this
event did not preserve appellants’ interest in the Miller reservation pursuant to R.C.
5301.49(D).
{¶31} Atty. Bickford’s affidavit contains probate filings from the Belmont County
Probate Court related to Donald F. Miller’s estate. (Bickford Aff. Ex. F). Donald F. Miller
was one of John D. Miller’s heirs. The application to probate Donald F. Miller’s will was
filed on April 7, 1989. In his will, Donald F. Miller left all property, real and personal, to
his wife June Ann Miller.
{¶32} Atty. Bickford’s affidavit also contains probate filings in the Belmont
County Probate Court related to June Ann Miller’s estate. (Bickford Aff. Ex. G). The
application to probate June Ann Miller’s will was filed on December 21, 1999. In her will,
June Ann Miller left all of her property, real and personal, to her sons, John D. Miller and
Donald D. Miller.
{¶33} Appellee argues that these probate filings are insufficient to preserve
appellants’ interest in the Miller reservation because they occurred in Belmont County,
not in Monroe County where the property is located. Appellee points out that there is no
evidence these probate filings were recorded in Monroe County.
{¶34} Appellee is correct that there is no evidence that any document related to
the estate of Donald F. Miller or June Ann Miller was recorded in Monroe County.
Case No. 19 MO 0022
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{¶35} The MTA is meant to facilitate and simplify land-title transactions by
permitting a person to rely on the record chain of title. R.C. 5301.55. The purpose of the
MTA is “to extinguish interests and claims in land that existed prior to the root of title with
‘the legislative purpose of simplifying and facilitating land title transactions by allowing
persons to rely on a record chain of title.’” Corban v. Chesapeake Expl., L.L.C., 149 Ohio
St.3d 512,
2016-Ohio-5796,
76 N.E.3d 1089, ¶ 17, quoting R.C. 5301.55. Courts are to
liberally construe the statutes at R.C. 5301.47 through R.C. 5301.56 to effect the
legislative purpose of simplifying and facilitating land title transactions by allowing persons
to rely on a record chain of title. West v. Bode, 7th Dist. No. 18 MO 0017, 2019-Ohio-
4092,
145 N.E.3d 1190, ¶ 30, appeal allowed,
157 Ohio St.3d 1535,
2020-Ohio-122,
137
N.E.3d 1196, and aff'd,
2020-Ohio-5473.
{¶36} This court has touched on the subject of whether a probate filing has to
occur in the county in which the land is situated in order to constitute a “title transaction”
under R.C. 5301.49(D)’s marketable title exception in Warner v. Palmer, 7th Dist. Belmont
No. 18 BE 0012, 2019-Ohio-4078, appeal not allowed,
158 Ohio St.3d 1422, 2020-Ohio-
647,
140 N.E.3d 740, reconsideration denied,
158 Ohio St.3d 1507,
2020-Ohio-2819,
144
N.E.3d 447. In Warner, the appellees argued that their interest was preserved under R.C.
5301.49(D)’s exception due, in part, to the filing of an ancillary estate in Belmont County,
the county in which the subject property was located. The probate estate of one of the
original reservationists was administered in Dallas County, Texas with an ancillary estate
administration in Belmont County, Ohio. Id. at ¶ 23. We found that the will administered
in Texas, with an ancillary administration in Belmont County where the subject property
was located, constituted a title transaction that saved the appellees’ interest under the
MTA. Id. at ¶¶ 24-25.
{¶37} The Fifth District subsequently relied on our Warner decision in reaching
its decision in Peppertree Farms, LLC v. Thonen, 5th Dist. Stark No. 2019CA00159,
2020-Ohio-3042, ¶ 51, appeal allowed sub nom. Peppertree Farms, L.L.C. v. Thonen,
160 Ohio St.3d 1407,
2020-Ohio-4574,
153 N.E.3d 104, reconsideration granted,
160
Ohio St.3d 1462,
2020-Ohio-5332,
157 N.E.3d 798. In that case, the appellants argued
that a will filed in West Virginia, among other items, constituted a title transaction to trigger
Case No. 19 MO 0022
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R.C. 5301.49(D)’s exception. Id. at ¶ 51. In addressing the will filed in West Virginia, the
Fifth District explained:
A title transaction is defined as “any transaction affecting title to any
interest in land, including title by will or descent, title by tax deed, or by
trustee's, assignee's, guardian's, executor's, administrator's, or sheriff's
deed, or decree of any court, as well as warranty deed, quit claim deed or
mortgage.” R.C. 5301.47(F). “Record” is defined as including “probate and
other official public records, as well as records in the office of the recorder
of the county in which all or part of the land is situated.” R.C. 5301.47(B).
“Recording” when applied to the official public records of the probate or
other court, includes filing. R.C. 5301.47(C).
We agree with appellees that the wills of Rose Neuhard and Dixie
Neuhard do not constitute exceptions to the MTA pursuant to R.C.
5301.49(D). … [U]nlike the case cited by appellants in support of their
argument in which there was an ancillary administration of the testator's
estate in Belmont County, the county in which all or part of the land was
situated pursuant to R.C. 5301.47(B), the will of Rose Neuhard was not
recorded, filed, or administered partially or fully in Ohio, but was filed and
administered fully in West Virginia. See Warner v. Palmer, 7th Dist.
Belmont No. 18 BE 0012, 2019-Ohio-4078,
2019 WL 4894089.
Id. at ¶¶54-55.
{¶38} Interpreting the legislative purpose of the MTA, the statutes, and the case
law together, it becomes clear that a title transaction must be recorded in the county
where the real property is located in order for the R.C. 5301.49(D) exception to apply.
Such an interpretation is also practical because someone conducting a search for the
record chain of title for a particular property in a particular county would not be put on
notice that there may have been a will filed in probate court in another county, or even
another state, that could affect title to the subject property. Without notice in the county
in which the property is located, a title examiner would struggle with where to search for
possible title transactions affecting the record chain of title. A probate certificate of
Case No. 19 MO 0022
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transfer or an ancillary estate recorded in the county in which the property is located, for
example, would put a title examiner on notice that there may be a title transaction in
another county or another state that could affect the record chain of title. Because the
estate of Donald F. Miller and the estate of June Ann Miller were both recorded in Belmont
County, and nothing filed in Monroe County where the property is located, the R.C.
5301.49(D) exception does not apply here.
{¶39} Appellants also argue that their interest in the Miller reservation was the
subject of two memorandums of lease, one between appellant Ruth Trigg Campbell and
Gulfport Energy Corporation and the other between appellant John Darby Miller and
Gulfport Energy Corporation. Both memorandums were recorded on May 17, 2017.
Appellants assert these memorandums operated as title transactions. Oil and gas leases
can be considered “title transactions” pursuant to R.C. 5301.47(F) because they affect
title to real property. Eisenbarth v. Reusser, 7th Dist. Monroe No. 13 MO 10, 2014-Ohio-
3792, ¶ 32; see also Chesapeake Exploration, L.L.C. v. Buell, 144 Ohio St.3d 490, 2015-
Ohio-4551,
45 N.E.3d 185, ¶ 50-51, 58-66.
{¶40} But these oil and gas leases do not satisfy the R.C. 5301.49(D) exception.
Appellee’s root of title is the 1966 deed. These two oil and gas leases were recorded in
2017, approximately 51 years after appellee’s root of title. Thus, these oil and gas leases
were filed after the 40-year look-back period of R.C. 530.148.
{¶41} Thus, no title transactions occurred during the relevant 40-year time period
that would trigger the R.C. 5301.49(D) exception. The trial court properly found that
appellants’ interest in the Miller reservation was extinguished by operation of the MTA.
{¶42} Accordingly, appellants’ second assignment of error is without merit and
is overruled.
{¶43} Appellants’ first assignment of error states:
THE TRIAL COURT ERRED IN DETERMINING THE SEVERED OIL
AND GAS MINERAL INTEREST IS ABANDONED BY OPERATION OF
THE 2006 OHIO DORMANT MINERAL ACT.
{¶44} Appellants argue that their interest in the Miller reservation was not
abandoned under the DMA because appellee did not follow the proper procedure for
Case No. 19 MO 0022
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providing notice to outstanding interest holders. Specifically, appellants argue that the
necessary information to discover their interest in the Miller reservation would have been
found had appellee searched Belmont County records.
{¶45} The DMA provides that “[a]ny mineral interest held by any person, other
than the owner of the surface of the lands subject to the 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” and no savings
events occur. R.C. 5301.56(B).
{¶46} Appellants only challenge appellee’s compliance with the notice provision.
The DMA’s notice provision provides that prior to a surface owner deeming an
outstanding mineral interest abandoned, the surface owner shall:
Serve notice by certified mail, return receipt requested, to each holder or
each holder's successors or assignees, at the last known address of each,
of the owner's intent to declare the mineral interest abandoned. If service
of notice cannot be completed to any holder, the owner shall publish notice
of the owner's intent to declare the mineral interest abandoned at least once
in a newspaper of general circulation in each county in which the land that
is subject to the interest is located.
R.C. 5301.56(E)(1).
{¶47} It is undisputed that appellee did not attempt to serve notice of her intent
to declare the Miller reservation abandoned to appellants by certified mail. Instead,
appellee published her notice in the Monroe County Beacon, which is a newspaper of
general circulation in the county in which the property is located.
{¶48} This court has held that if a surface owner engages in reasonable due
diligence to locate interest holders but cannot locate any interest holders, serving the
notice by certified mail is not necessary. Shilts v. Beardmore, 7th Dist. Monroe No. 16
MO 0003, 2018-Ohio-863, ¶ 15, appeal not allowed,
153 Ohio St.3d 1433, 2018-Ohio-
2639,
101 N.E.3d 464. Thus, if appellee engaged in reasonable due diligence and was
not able to locate any interest holders, she would not be required to serve her notice by
certified mail.
Case No. 19 MO 0022
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{¶49} Several questions arise as to whether appellee could have located any of
appellants’ addresses in the exercise of reasonable due diligence, which would have
required her to then serve her notice of abandonment by certified mail instead of by
publication. For instance, there was a certificate of transfer from the Estate of John D.
Miller dated August 14, 1940, indicating that the Estate of John D. Miller transferred his
interest in the Miller reservation to Sara Emma Miller, William Miller, George Miller, Nancy
Ruth Trigg, John M. Miller, and Donald Miller (appellants’ predecessors in interest). The
certificate of transfer lists John D. Miller as a resident of Shadyside, Ohio. Shadyside is
located in Belmont County. Additionally, appellee was able to serve appellant Marilyn
Miller Whyte by certified mail with notice of this action. But how appellee discovered
Marilyn Miller Whyte’s address is not part of the record.
{¶50} Nonetheless, we need not determine whether appellant exercised
reasonable due diligence to locate the interest holders. We already found that appellants’
mineral interest was extinguished under the MTA. Thus, their DMA argument is now
moot. Accordingly, appellants’ first assignment of error is moot.
{¶51} For the reasons stated above, the trial court’s judgment is hereby affirmed.
Waite, P. J., dissents with dissenting opinion.
Robb, J., concurs.
Case No. 19 MO 0022
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Waite, J., dissenting.
{¶52} I must respectfully dissent from the conclusion that the majority has
reached in this case. Based on statutory construction of the MTA, I disagree that R.C.
5301.47(B) requires a title transaction involving “probate and other official public records”
to be recorded in the county where the property is located.
{¶53} Pursuant to R.C. 5301.47(B), a record “includes probate and other official
public records, as well as records in the office of the recorder of the county in which all or
part of the land is situate.” While the majority is correct that records kept by the recorder’s
officer must be filed or recorded in the county where the property is located, this phrase
is separated from the preceding clause that pertains to probate and other public records
by a comma.
{¶54} “A court ‘must read words and phrases in context and construe them in
accordance with rules of grammar and common usage.’ ” Steiner v. Morrison, 7th Dist.
Mahoning No. 14 MA 0114, 2016-Ohio-4798,
68 N.E.3d 151, ¶ 22, citing W. Jefferson v.
Cammelleri, 12th Dist. Madison No. CA2014-04-012,
2015-Ohio-2463, ¶ 14; State ex rel.
Choices for S.W. City Schools v. Anthony,
108 Ohio St.3d 1,
2005-Ohio-5362,
840 N.E.2d
582, ¶ 40. “According to ordinary grammar rules, items in a series are normally separated
by commas.”
Steiner at ¶ 22, citing
W. Jefferson at ¶ 15; Chicago Manual of Style 312
(16th Ed.2010). When phrases are separated by a comma, the words within the commas
refer to only one idea.
Id.
{¶55} The first definitional phrase in R.C. 5301.47(B), “probate and other public
records,” does not include language requiring these records to be filed or recorded in the
county where the property is located. However, the second definitional phrase, “as well
as records in the office of the recorder of the county in which all or part of the land is
situate,” does require records to be located in the county. Reading these phrases as
separate requirements, as we must, there is nothing within the language of the statute
that requires “probate and other public records” to be filed or recorded in the county where
the property is situated. In order to read the statute as the majority does, the comma in
that sentence should be placed after the word “recorder.” The language would read,
instead, that a record “includes probate and other official records, as well as records in
the office of the recorder, of the county in which all or part of the land is situate.” This is
Case No. 19 MO 0022
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not how the statute was drafted and the statute as written cannot be interpreted as though
it was.
{¶56} If the legislature had intended the interpretation given by the majority, the
legislature could have drafted it accordingly.
{¶57} The preservation mechanism of the MTA differs from language found in the
DMA in this regard. The MTA preserves:
Any interest arising out of a title transaction which has been recorded
subsequent to the effective date of the root of title from which the unbroken
chain of title or record is started; provided that such recording shall not
revive or give validity to any interest which has been extinguished prior to
the time of the recording by the operation of section 5301.50 of the Revised
Code
R.C. 5301.49(D).
{¶58} Had the MTA been intended to require probate and other public records to
be filed or recorded in the county where the property is located, the legislature would have
used language similar to that found within the DMA, R.C. 5301.56. Pursuant to R.C.
5301.56(B)(3)(a), an interest is preserved if “[t]he mineral interest has been the subject
of a title transaction that has been filed or recorded in the office of the county recorder of
the county in which the lands are located.” (Emphasis added.) Here, the entire phrase
clearly indicates that any title transaction, in order to operate to preserve an interest, must
be filed or recorded within the county where the property is located.
{¶59} Consequently, I disagree with the majority and would reverse the trial
court’s determination that Appellant’s interest was extinguished by the MTA. Then, I
would proceed to analyze Appellant’s first assignment of error to determine if the interest
was abandoned pursuant to the DMA.
Case No. 19 MO 0022
[Cite as Lucas v. Whyte, 2021-Ohio-222.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Monroe County, Ohio, is affirmed. Costs to be taxed against
the Appellants.
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.
