[Cite as Menges v. Strunk,
2025-Ohio-2766.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
BELMONT COUNTY
RONALD A. MENGES ET AL.,
Plaintiffs-Appellees,
v.
SAMUEL L. STRUNK ET AL.,
Defendants-Appellants.
OPINION AND JUDGMENT ENTRY
Case No. 24 BE 0018
Motion to Certify Conflict
BEFORE:
Katelyn Dickey, Carol Ann Robb, Mark A. Hanni, Judges.
JUDGMENT:
Overruled.
Atty. Daniel P. Corcoran, Theisen Brock, for Plaintiffs-Appellees and
Atty. Kyle W. Bickford and Atty. Erik A. Schramm, Jr., Hanlon, McCormick, Schramm,
Bickford & Schramm Co., LPA, for Intervenors-Plaintiffs-Appellees and
Atty. Craig J. Wilson, C.J. Wilson Law, LLC, for Defendants-Appellants.
Dated: August 6, 2025
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PER CURIAM.
{¶1} This matter is before us on a motion to certify conflict filed by Appellees,
Blain and Deborah West, Joseph and Karen Porter, Joseph W. Husk and Megan Husk,
Melvin W. Husk and Charlotte Husk, Vernon Troyer, and Wayne and Betty Jean Troyer,
Co-Trustees of the Troyer Family Trust, and Richard L. Pfeiffer and Carole A. Pfeiffer,
Trustees of the Pfeiffer Family Trust on April 18, 2025. Appellees contend our decision
overruling Appellees’ application for reconsideration in Menges v. Strunk, 2025-Ohio-
1301 (7th Dist.), is at odds with the Eighth District’s decision in State ex rel. Consortium
For Economic & Community Dev. For Hough Ward 7 v. McMonagle, 2016-Ohio-4704 (8th
Dist.). Appellants, John Wayne Huddleston, Cynthia Huddleston, Linda Hanes, Hugh
Hanes, Billy Payne, Richard Huddleston, David Jones, Grace Jones, James Jones,
Denise Jones, Tammera Gray, and Kelly Gray filed their brief in opposition on April 24,
2025. Appellees filed their reply on April 30, 2025. For the following reasons, Appellees’
motion to certify conflict is overruled.
{¶2} Article IV, Section 3(B)(4), of the Ohio Constitution, captioned “Organization
and jurisdiction of courts of appeals,” reads:
Whenever the judges of a court of appeals find that a judgment upon
which they have agreed is in conflict with a judgment pronounced upon the
same question by any other court of appeals of the state, the judges shall
certify the record of the case to the supreme court for review and final
determination.
{¶3} App.R. 25, captioned “Motion to certify a conflict,” states in part:
(A) A motion to certify a conflict under Article IV, Section 3(B)(4) of
the Ohio Constitution shall be made in writing no later than ten days after
the clerk has both mailed to the parties the judgment or order of the court
that creates a conflict with a judgment or order of another court of appeals
and made note on the docket of the mailing, as required by App. R. 30(A).
. . . A motion under this rule shall specify the issue proposed for certification
and shall cite the judgment or judgments alleged to be in conflict with the
judgment of the court in which the motion is filed.
Case No. 24 BE 0018
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{¶4} To certify a conflict to the Ohio Supreme Court, three conditions must be
satisfied. Whitelock v. Gilbane Bldg. Co., 66 Ohio St.3d 594, 596 (1993). First, we must
find our judgment conflicts with the judgment issued by another appellate district on the
same legal question.
Id. The issue proposed for certification must be dispositive of the
case. State ex rel. Davet v. Sutula,
2012-Ohio-759, ¶ 2. Second, the conflict must be on
a rule of law, not facts. “Factual distinctions between cases do not serve as a basis for
conflict certification.”
Whitelock at 599. Third, our judgment or opinion must clearly set
forth the rule of law that conflicts with the judgment on the same question issued by
another appellate district.
Id. at 596.
{¶5} We provided the following summary of the merits decision in our opinion
and judgment entry overruling Appellees’ application for reconsideration:
This appeal concerns the ownership of an oil and gas interest first
severed from a 1,000-plus-acre property in 1953 by O.A. and Dora Jones
(“Jones property”). Through a series of property transfers, the oil and gas
interest was conveyed to the Jones’ children, who subsequently conveyed
the surface and half of the oil and gas rights in 1,128 acres to Seaway Coal
in 1970. There is no dispute that Appellants are the heirs and assigns of the
children of O.A. and Dora Jones, and purported owners of the one-half
interest reserved in the Seaway Coal deed (“Jones interest”).
In August of 2013, Ronald Menges filed a complaint pursuant to the
Dormant Mineral Act alleging abandonment of the Jones interest by
Appellants in roughly ten acres of the Jones property then owned by
Menges (“original complaint”). All parties agree that successful service by
publication of the original complaint was made on Appellants.
In October of 2013, Appellees filed motions to intervene in which they
collectively asserted extinguishment of the Jones interest in an additional
270 acres of the Jones property. Appellees concede service of the
intervenors’ complaints was neither perfected nor even attempted on
Appellants.
Case No. 24 BE 0018
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Appellees relied instead on Civil Rule 5(A), which reads in relevant
part, “[s]ervice is not required on parties in default for failure to appear
except that pleadings asserting new or additional claims for relief or for
additional damages against them shall be served upon them in the manner
provided for service of summons in Civ. R. 4 through Civ. R. 4.6.” Appellants
reasoned their claims were identical to Menges’ claim, that is,
extinguishment of the Jones interest, despite the fact that the intervenors’
complaints related to separate parcels, and included a claim for tortious
interference with contract (not alleged in the original complaint) and
additional damage claims totaling roughly twenty-three times the amount
claimed by Menges.
On December 30, 2013, Menges moved for judgment on the
pleadings against the defaulting parties, which was granted by the trial court
that same day, then subsequently amended to correct property descriptions
(“2013 amended judgment entry”). Despite the fact that the motion was
made solely by Menges, the trial court entered judgment in favor of
Appellees as well, finding Appellants abandoned their oil and gas rights in
the additional 270 acres identified in the intervenors’ complaints.
On July 12, 2023, roughly ten years later, Appellants filed a motion
to vacate the 2013 amended judgment entry, except as it related to the
Menges parcel. Appellants asserted the 2013 amended judgment entry
divesting them of their mineral rights was void as to Appellees’ 270 acres,
based on Appellees’ failure to serve the intervenors’ complaints.
Appellants reasoned service was required because the intervenors’
complaints asserted new claims and damages, and without service, the trial
court never acquired jurisdiction over Appellants with respect to Appellees’
claims. The trial court overruled the motion to vacate, finding the claims
asserted by Menges and Appellees were the same and Civil Rule 5(A)
excused the service requirement for the intervenors’ complaints.
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On appeal, we reversed the judgment entry of the trial court on the
motion to vacate, finding the 2013 amended judgment entry was void due
to Appellees’ failure to serve the intervenors’ complaint on Appellants. We
reasoned Appellees’ claims were new and additional to Menges’ claim
because they related to different parcels, Appellees alleged a tortious
interference with contract claim not found in the original complaint, and
dramatically increased the demand for damages.
In their merits brief, Appellants argued the trial court's failure to
vacate the 2013 amended judgment was harmless error based on the law
of the case doctrine. Appellants reasoned the trial court was obliged to apply
the 1986 DMA upon remand, as it had to the original complaint, and the trial
court would invariably conclude Appellants abandoned the mineral interest
with respect to Appellees’ property. We opined no civil action was ever
commenced against Appellants by Appellees, the trial court never acquired
jurisdiction over Appellants with respect to the intervenors’ complaints, and
as a consequence, the law of the case doctrine did not apply.
(Emphasis added) Menges v. Strunk, 2025-Ohio-1301, ¶ 4-12 (7th Dist.).
{¶6} In a footnote, Appellees argue their motion to certify conflict is timely as it
challenges the italicized portion of the foregoing summary of our merits decision, which
they contend was announced for the first time in our opinion and judgment entry overruling
their application for reconsideration. However, Appellees cited McMonagle, 2016-Ohio-
4604 (8th Dist.), for the first time in their reply brief to their application for reconsideration.
Therefore, Appellees were aware of the alleged conflict when our merits decision was
issued and the motion to certify conflict is untimely.
{¶7} Even assuming the motion was timely filed, the Eighth District case is not
“upon the same question” and is factually distinct from our case. A brief summary of the
facts and law in McMonagle informs our decision.
{¶8} In McMonagle, Consortium owned a parcel of real property in Cuyahoga
County. The parcel was adjacent to property owned by the Oak Leadership Institute.
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{¶9} On August 30, 2013, Oak Leadership filed an action in Cuyahoga County
Common Pleas Court to quiet title to the Consortium parcel. Judge McMonagle was
assigned to preside over the quiet-title action. On December 12, 2013, a tax-foreclosure
suit relating to the Consortium parcel was filed in Cuyahoga County Common Pleas
Court.
{¶10} Although the quiet-title action was filed first, Consortium sought a writ of
prohibition against Judge McMonagle under the theory that the foreclosure lawsuit had
jurisdictional priority. Consortium predicated its argument on the fact that the plaintiff in
the foreclosure action was first to perfect service of process over all the interested parties.
{¶11} The Eighth District granted summary judgment in favor of Judge
McMonagle and denied the writ. The Court held the jurisdictional-priority rule does not
apply to cases filed in the same division of the same court. McMonagle, 2016-Ohio-4704,
¶ 18.
{¶12} Because the Ohio Supreme Court had made no pronouncement regarding
the applicability of the jurisdictional-priority rule in cases filed in the same division of the
same court, the Eighth District opined in the alternative:
Civ.R. 3(A) provides in pertinent part as follows: “A civil action is
commenced by filing a complaint with the court, if service is obtained within
one year from such filing upon a named defendant . . . .” The use of the
article [“]a[”] indicates a case is commenced upon service of just one
defendant out of all of the defendants. This contradicts the position that a
case is not commenced until all of the defendants have been served.
Furthermore, the rule provides clarity for purposes of the jurisdictional
priority rule in establishing clear, recognized events to determine when the
rule would apply, as compared to an uncertain and arguably changing result
as new parties are discovered.
McMonagle at ¶ 20.
{¶13} The Ohio Supreme Court affirmed the decision of the Eighth District on
Consortium’s first proposition of law, finding the jurisdictional-priority rule does not apply
to cases filed in the same division of the same court. As a consequence, the Ohio
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Supreme Court declined to consider Consortium’s second proposition of law, that a
lawsuit is not “commenced” for the purposes of the jurisdictional-priority rule until all
necessary parties are served. State ex rel. Consortium For Economic & Community Dev.
for Hough Ward 7 v. Russo, 2017-Ohio-8133.
{¶14} A review of the facts and holdings here and in McMonagle demonstrates
they are not decided “upon the same question” and are factually distinct. The holding in
McMonagle is the jurisdictional-priority rule does not apply to cases filed in the same
division of the same court. Accordingly, the holding in McMonagle is both legally and
factually distinct from our holding here.
{¶15} Further, the Eighth District’s alternative finding in McMonagle has no
precedential value. The Ohio Supreme Court has opined the issue proposed for
certification must be dispositive of the case. Sutula, 2012-Ohio-759, ¶ 2.
{¶16} Finally, the alternative finding in McMonagle does not conflict with our
conclusion that no case against Appellants was commenced with respect to the
intervenors’ complaints. The most expansive reading of the dicta in McMonagle does not
support Appellees’ conclusion that it directly conflicts with our application of Civil Rule
5(A) in this appeal.
{¶17} For the foregoing reasons, Appellees’ motion to certify conflict is overruled.
JUDGE KATELYN DICKEY
JUDGE CAROL ANN ROBB
JUDGE MARK A. HANNI
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 24 BE 0018
