Paul v. Hannon , 2017 Ohio 1261 ( 2017 )

[Cite as Paul v. Hannon, 2017-Ohio-1261.]
STATE OF OHIO, CARROLL COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
TERRI L. PAUL, )
)
PLAINTIFF-APPELLANT, )
) CASE NO. 15 CA 0908
V. )
) OPINION
HARRIETT LUCINDA HANNON, ET AL., )
)
DEFENDANTS-APPELLEES. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas of Carroll County, Ohio
Case No. 2013CVH27582
JUDGMENT: Affirmed in part
Reversed in part
APPEARANCES:
For Plaintiff-Appellant Attorney David E. Butz
Attorney Matthew W. Onest
4775 Munson St., NW/ P.O. Box 36963
Canton, Ohio 44735-6963
For Defendants-Appellees Attorney Karen J. Greenwell
Attorney G. Brian Wells
250 West Main St. Suite 1600
Lexington KY 40507
Attorney Eric C. Johnson
12 W. Main Street
Canfield, Ohio 44406
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: March 31, 2017
[Cite as Paul v. Hannon, 2017-Ohio-1261.]
DONOFRIO, J.
{¶1} Plaintiff-appellant, Terri Paul, appeals from a Carroll County Common
Pleas Court judgment denying her motion for partial summary judgment and granting
the motion for summary judgment filed by defendants-appellees, Harriet Hannon and
the Estate of Robert Douglas Hannon.
{¶2} This case involves the Ohio Dormant Mineral Act (ODMA). Appellant is
the owner of a 70-acre tract of land in Perry Township (the Property) and the owner
of a one-half interest in the oil and gas interest below the Property. Appellees are the
owners of the other one-half interest in the oil and gas below the Property. Appellant
sought to reunite appellees’ oil and gas interest with her interest pursuant to the
ODMA. Appellees sought to preserve their one-half interest pursuant of the ODMA.
{¶3} On October 25, 1944, Raymond and Nellie Davis sold to R.H. Hannon a
one-half interest in all oil and gas and other minerals except coal underlying the
Property. The deed is referred to as the “Davis Deed.”
{¶4} On October 30, 1944, Russell and Florence Cain sold to R.H. Hannon a
one-half interest in all the oil and gas under a 60-acre tract of land in Perry Township,
Carroll County. This is referred to as the “Cain Deed.”
{¶5} On December 16, 1944, W. McClelland and Wilma Patterson
transferred to R.H. Hannon a one-half interest in all the oil and gas under a 147-acre
tract of land which is referred to as the “Patterson Deed.”
{¶6} On July 31, 1989, the above three interests, those represented by the
Davis, Cain, and Patterson Deeds, and any other mineral interests in Carroll County,
Ohio owned by R.H. Hannon, were conveyed to R.H. Hannon’s children Lucinda
Hannon, Doug Hannon, and Hal Hannon, in equal shares by the Estate of R.H.
Hannon. This transfer is referred to as the “Children’s Deed.” In addition to other
things, the Children’s Deed specifically referenced the Davis, Cain, and Patterson
Deeds stating:
Lands situated in Section 30, Township 12, Range 5, Perry Township,
Carroll County, Ohio as more particularly described in an instrument
from Russell Cain and Florence Cain dated October 30, 1944 and
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recorded in Volume 28, Page 33, Volume 28, Page 32 and Volume 28,
Page 39, Lease Records, Carroll County, Ohio.
{¶7} Hal Hannon later sold all of his interest in the Children’s Deed to
Lucinda Hannon. That transfer, dated August 14, 1989, is referred to as “Hal’s Deed.”
Thus, at this point, Lucinda owned a two-thirds interest in the minerals conveyed by
the Children’s Deed and Doug Hanon (now his estate) owned one third.
{¶8} In 1989, appellant and her spouse acquired from Thelma Borland and
Nellie Davis the surface and other interest in what is described above as the Davis
Deed with the specific exception of the one-half interest in oil and gas and other
minerals deeded to R.H. Hannon. This transfer from Borland and Davis to appellant
and her spouse is called the “Paul Deed.”
{¶9} On May 27, 2010, appellant’s spouse transferred his interest in the Paul
Deed to appellant by quitclaim deed. This deed is referred to as the “Quitclaim Deed.”
As a result, appellant now owns the surface lands and one-half interest in the
minerals below the land and appellees own the other one-half interest in the minerals
below the surface land in the Property.
{¶10} In 2011, appellant leased her oil and gas interest in the Property to
Chesapeake Exploration, LLC. A memorandum of the lease was recorded.
Subsequently, appellant learned that Chesapeake would pay her only one-half of the
proceeds because it determined that one-half of the oil and gas rights belonged to
appellees. In April 2012, appellant took steps to try to obtain appellees’ one-half
interest by initiating the steps set forth in the ODMA.
{¶11} On April 20, 2012, appellant mailed to both appellees a document titled
Notice of Intent to Declare Mineral Interest Abandoned Pursuant to R.C. 5301.56.
{¶12} On May 25, 2012, both appellees filed a document titled Affidavit to
Preserve Mineral Interest which stated that appellees wished to preserve their oil and
gas interests.
{¶13} On June 14, 2012, appellant recorded two documents both titled
Affidavit of Fact Relating to Title to Real Estate, which state that the mineral interests
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previously owned by appellees have been abandoned.
{¶14} On July 24, 2012, appellant recorded two documents both titled
Affidavit of Facts asking the County Recorder to marginally note the abandonment of
the mineral interests of appellees pursuant to the previously filed Affidavits of
Abandonment.
{¶15} On November 7, 2012, December 7, 2012, and December 19, 2012,
appellees filed Memorandums of Oil and Gas Lease reflecting the leasing of their oil
and gas interests to Chesapeake Exploration, LLC.
{¶16} On July 11, 2013 appellant filed a complaint against appellees and
others seeking relief in the forms of declaratory judgment, quiet title, injunction,
slander of title, negligence/negligence per se, and unjust enrichment.
{¶17} Appellees filed an answer, counterclaim, and third-party complaint. In
their counterclaim, appellees sought declaratory judgment, quiet title, and slander of
title. The third-party claim was bifurcated and is not an issue here.
{¶18} Appellant filed a motion for partial summary judgment on her complaint
for declaratory relief, quiet title, injunctive relief, and slander of title. Appellant also
sought summary judgment on all claims asserted in appellees’ counterclaim.
Appellees also filed a motion for summary judgment. Appellees sought summary
judgment on their counterclaim and on each of appellant’s claims against them.
{¶19} The trial court denied appellant’s motion and granted appellees’ motion.
The court quieted title in favor of appellees with regard to the one-half interest in the
oil and gas underlying the Property. The court also awarded appellees nominal
damages of $1.00 on their counterclaim for slander of title.
{¶20} Appellant filed a timely notice of appeal. On appeal, appellant does not
challenge the trial court’s award of summary judgment to appellees’ regarding
appellant’s claims for unjust enrichment, conversion, or constructive trust.
{¶21} An appellate court reviews the granting of summary judgment 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
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judgment was proper.
{¶22} 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. 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). 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,
1993-Ohio-191, 617 N.E.2d 1129.
{¶23} Appellant’s first assignment of error states:
THE TRIAL COURT ERRONEOUSLY CLASSIFIED R.C. 5305.56 AS A
FORFEITURE STATUTE AND AS A RESULT, APPLIED AN
IMPROPER STANDARD OF REVIEW FOR APPELLANT’S
ABANDONMENT EFFORTS.
{¶24} Appellant argues that the ODMA is properly characterized as an
“abandonment statute.” She asserts that the trial court’s failure to properly define the
ODMA tainted its analysis and its decision must be reversed. Appellant argues that
the ODMA should be interpreted in favor of the owner of the surface land as their
property rights are affected by any unused or forgotten interests.
{¶25} In addressing this issue, the trial court observed that at common law,
severed ownership of mineral interests could not be lost by mere nonuse, that a
vested fee interest in real property cannot be abandoned, and that the law abhors a
forfeiture.
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{¶26} The trial court explained that appellees’ filing of a notice of preservation
and a defense in this action demonstrates that they did not intend to abandon their
mineral interest. Thus, the only way appellees could legally be divested of their
interest was by way of a statutory forfeiture. Accordingly, the trial court characterized
the ODMA as a forfeiture statute. The trial court was of the opinion that whether or
not the ODMA is viewed as “abandonment” or “forfeiture,” it is contrary to common
law and should be construed “to insure that [a] person being deprived of his or her
property receives all of the protections the General Assembly provided in the statute.”
Further, the trial court concluded, it is appropriate to require that appellant, as the one
seeking to acquire appellees’ property rights, comply with all aspects of the
requirements of the ODMA. Lastly, the trial court opined that R.C. 5301.55’s mandate
that R.C. 5301.56 “shall be liberally construed to effect the legislative purpose of
simplifying and facilitating land title transactions by allowing persons to rely on a
record chain of title * * * ” does not mean that the statute should be liberally construed
to make it easier for surface owners to acquire the minerals of others in derogation of
countervailing common law principles and without fully satisfying the requirements
imposed on surface owners by R.C. 5301.56.
{¶27} The Ohio Supreme Court recently analyzed the ODMA in Corban v.
Chesapeake Exploration, LLC, __ Ohio St.3d __ 2016-Ohio-5796, __N.E.3d __. In
Corban, the Ohio Supreme Court answered two certified questions regarding the
1989 and 2006 versions of the ODMA. In answering those questions, the Ohio
Supreme Court explained that in enacting the 1989 version, “the legislature did not
intend title to dormant mineral interests to pass automatically and outside the record
chain of title.” Corban at ¶ 27. The Court explained:
The statute remedied the difficulties faced by a surface owner seeking
to quiet title to a dormant mineral interest, an action that requires proof
that the mineral rights holder-who may not be locatable or identifiable
from the land records-had abandoned and relinquished that interest. At
common law, such an action would have failed absent proof of the
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property owner’s subjective intent. [citation omitted]. Thus, by providing
a conclusive presumption that the mineral interest had been abandoned
in favor of the surface owner if the holder failed to take timely action to
preserve it, the legislature provided an effective method of terminating
abandoned mineral rights through a quiet title action.
Corban at ¶ 25. The Court further explained that “the conclusive presumption of
abandonment was only an evidentiary device that applied to litigation seeking to quiet
title to a dormant mineral interest.” Id. at ¶ 26. As of June 26, 2006, a surface holder
seeking to claim dormant mineral rights “is required to follow the statutory notice and
recording procedures enacted in 2006.” Id. at ¶ 31. “These procedures govern the
manner by which mineral rights are deemed abandoned and vested in the surface
holder.” Id.
{¶28} Whether the ODMA is characterized as an “abandonment statute” or a
“forfeiture statute,” the trial court correctly concluded that the resolution of this action
depends upon what the statute itself demands. Whether a forfeiture or an
abandonment statute, the purpose is to allow a surface owner to take steps to have
mineral interests reunited with the surface lands, but only after the surface owner has
taken the necessary statutory steps. The facts here amply illustrate that appellant
sought to reunite the one-half interest in oil and gas she did not own with her surface
land, and appellees sought to preserve their interest and block appellant’s attempt to
reunite the severed one-half interest.
{¶29} Regardless of its nomenclature regarding the ODMA, the trial court
properly applied it in determining that appellees did not abandon their oil and gas
interest underlying the Property.
{¶30} Accordingly, appellant’s first assignment of error is without merit and is
overruled.
{¶31} Appellant’s second assignment of error states:
THE TRIAL COURT ERRED BY HOLDING THAT APPELLANT
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FAILED TO COMPLY WITH R.C. 5301.56’S ABANDONMENT
PROCEDURE.
{¶32} R.C. 5301.56(E) provides that, before a severed mineral interest can be
vested in the owner of the surface lands, the surface owner must do two things. First,
the surface owner must serve notice, by certified mail, return receipt requested, to
each holder at the last known address of the holder, of the owner’s intent to declare
the mineral interest abandoned. The notice shall contain all of the information in R.C.
5301.56(F). R.C. 5301.56(E)(1).
{¶33} Second, the surface owner must file in the county recorder’s office an
affidavit of abandonment that contains all of the information in R.C. 5301.56(G) at
least 30 days, but not more than 60 days, after the date on which the notice is served
or published. R.C. 5301.56(E)(2).
{¶34} The trial court stated that appellant’s certified mail notice did not strictly
comply with the requirement that notice be mailed to the “last known address” of the
holder. The trial court pointed out that the notice was not mailed to the address on
the holders’ deeds.
{¶35} Appellant argues that she used a more current address than the one in
appellees’ deeds for the agent of appellees and this should satisfy the statutory
requirement of a mailing to the “last known address.” Further, appellant points to this
court’s statement in Dodd v. Croskey, 7th Dist. No. 12 HA 6, 2013-Ohio-4257, that
where notice is actually received failure to strictly comply with the notice requirement
is considered to be harmless error. Id. at ¶ 59.
{¶36} The trial court concluded that it “need not determine whether an
incorrectly addressed notice, which did eventually reach the holder, makes the notice
ineffective.” Likewise, we need not determine what is considered the correct address
under the ODMA. Appellees actually received the notice.
{¶37} R.C. 5301.56(E)(1) also provides that appellant’s notice shall contain all
of the information specified in R.C. 5301.56(F). The pertinent part of the statute
provides that appellant’s notice shall contain:
-8-
A description of the mineral interest to be abandoned. The description
shall include the volume and page number of the recorded instrument
on which the mineral interest is based.
R.C. 5301.56(F)(3).
{¶38} The trial court concluded that appellant’s notice was ineffective because
it failed to properly describe the mineral interest she sought to have reunited with her
surface lands. The trial court reasoned that the description in appellant’s notices
included all of the interests in oil and gas or other minerals as described in the
Children’s Deed. The Children’s Deed reflects the conveyance by the Estate of R.H.
Hannon of any mineral interests in Carroll County owned by R.H. Hannon, including
those reflected in the Davis, Cain, and Patterson Deeds, to his three children. The
notices then reference the Children’s Deed. The trial court explained there was an
erroneous reference to a “Deed of Reservation” recorded at Lease Book 71, Page
597. This “Deed of Reservation” is Hal’s Deed (the transfer by Hal of all his interest in
the Children’s Deed to Lucinda). The trial court concluded that since the controlling
reference in the notice is to the Children’s Deed, which includes at least three tracts
of which the surface owner had an interest in only one, this created an ambiguous
and defective description.
{¶39} Appellant complains that the trial court failed to consider the notice as a
whole. The notice continues, after referencing the Children’s Deed, with the following
language:
And applying to the following described lands (“Mineral Interest”):
Lands situated in the Section thirty (30), Township twelve (12), Range
five (5), Township of Perry, County of Carroll, and State of Ohio, as
more particularly described in ... Volume 28, Page 32 ... Lease
Records, Carroll County, Ohio.
The ellipses omit the Cain and Patterson Deeds. The Cain and Patterson oil and gas
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interests are eliminated from the description of the mineral interest. Volume 28, Page
32, is the Davis Deed and is the surface property which appellant owns.
{¶40} Appellant’s notice, although somewhat confusing, given all of the facts
and reading the entire notice, substantially met the requirements of the statute and
put appellees on notice of the mineral interest against which appellant intended to file
an Affidavit of Abandonment. Therefore, it seems, on this narrow issue the trial court
reached the wrong conclusion. This, however, does not end the discussion of
appellant’s second assignment of error.
{¶41} After notice, if the holder of the mineral interest wants to preserve their
interest, they must file a claim to preserve. If a claim to preserve is not filed, the
surface owner then must file in the office of the county recorder, at least 30 but not
later than 60 days after notice is served, an affidavit of abandonment which contains
all of the information in R.C. 5301.56(G). R.C. 5301.56(G) states that the affidavit of
abandonment shall contain the following:
(1) A statement that the person filing the affidavit is the owner of the
surface of the lands subject to the interest;
(2) The volume and page number of the recorded instrument on which
the mineral interest is based;
(3) A statement that the mineral interest has been abandoned * * *;
(4) A recitation of the facts constituting the abandonment;
(5) A statement that notice was served on each holder * * *
R.C. 5301.56(G).
{¶42} The parties dispute only whether appellant complied with subpart two.
The trial court, as with the notice, concluded that the affidavit purported that the
surface owner will acquire all of the mineral interests described in the Children’s
Deed and Hal’s Deed, which includes oil and gas under surface land not owned by
appellant.
{¶43} One aspect of appellant’s affidavits that is different from the notice is
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that the affidavits describe the mineral interest as follows:
All as more particularly set forth in the Mineral Deed recorded in the
Carroll County Recorder’s Office at Lease Book Volume 71, Page 438
and also by the Mineral Deed recorded in the Carroll County Recorder’s
Office at Lease Book Volume 71, Page 597 (the aforesaid reserved
interest excluding coal is referred to as “Mineral Interest”).
The filings reference the Children’s Deed and Hal’s Deed which include at least two
parcels in which appellant has no interest. And the affidavit does not include the
language which was included in the notice given to appellees describing the “Mineral
Interest” using ellipses in place of the Cain and Patterson Deeds and using only the
volume and page number of the Davis Deed, which is the correct mineral interest
over which she owns the surface. Thus, the affidavits of abandonment include all of
the mineral interests conveyed by the Estate of R.H. Hannon to his children, including
the oil and gas interests in the Cain and Patterson Deeds, to which appellant admits
she has no claim.
{¶44} Appellant argues that her affidavits of abandonment did not need to
include a description of the mineral interest which she seeks to reunite with her
surface lands. Instead, she argues, the affidavits needed only include the volume and
page number of the instrument on which the mineral interest is based. Appellant
argues the above quoted volumes and page numbers satisfy this requirement as they
reference the two deeds (the Children’s Deed and Hal’s Deed) on which appellees’
mineral interest is based.
{¶45} Next, appellant’s two July Affidavits of Facts are apparently appellant’s
attempt to comply with R.C. 5301.56(H)(2)’s direction to cause the county recorder
“to memorialize the record on which the severed mineral interest is based” with
specific statutory language indicating that the mineral interest is abandoned. R.C.
5301.56(H)(2). Similarly, these documents reference only the Children’s Deed and
Hal’s Deed. The affidavits ask that the Children’s Deed and Hal’s Deed be noted with
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the following language: “This mineral interest abandoned pursuant to Affidavit of
Abandonment recorded in Book 83, Page 3977.”
{¶46} The trial court concluded that this notation on the Children’s Deed and
Hal’s Deed would indicate that the mineral interests in the Cain and Patterson Deeds,
and any other interests owned by the Estate of R.H. Hannon, have been statutorily
abandoned. This suggests that other interests owned by appellees, which are not
below the surface land owned by appellant, were also abandoned. But the notation
would also include the oil and gas interest at issue here. Thus, the trial court should
have found that appellant substantially complied with R.C. 5301.56’s abandonment
provisions. But as will be seen in appellant’s next assignment of error, because
appellees preserved their oil and gas interest, this assignment of error does not
present a reversible error.
{¶47} Accordingly, appellant’s second assignment of error is without merit and
is overruled.
{¶48} Appellant’s third assignment of error states:
THE TRIAL COURT ERRED BY HOLDING THAT APPELLEES
PROPERLY PRESERVED THEIR SEVERED MINERAL INTEREST
WHEN APPELLEES FILED CLAIMS TO PRESERVE WHICH THE
TRIAL COURT ACKNOWLEDGED “CLEARLY DID NOT MEET ALL
OF” R.C. 5301.56’S REQUIREMENTS.
{¶49} Appellant argues that appellees’ attempt to preserve their mineral
interests must strictly comply with the statutory requirements and, even if strict
compliance is not necessary, appellees’ attempt to preserve their interests did not
substantially comply with the statutory requirements.
{¶50} If the holder of a mineral interest has received notice pursuant R.C.
5301.56(E), the holder, within 60 days of the date on which notice is served, must file
in the office of the county recorder either a claim to preserve the mineral interest in
accordance with R.C. 5301.56(C) or an affidavit identifying one of the saving events
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in R.C. 5301.56(B)(3). Appellees do not assert that any of the saving events
occurred. Instead, appellees argue, and the trial court agreed, that they filed a claim
to preserve pursuant to R.C. 5301.56(C) and have thus preserved their oil and gas
interests. That provision states that a claim to preserve may be filed and recorded by
the holder. The claim to preserve shall consist of a notice that does all of the
following:
(a) States the nature of the mineral interest claimed and any recording
information upon which the claim is based;
(b) Otherwise complies with section 5301.52 of the Revised Code;
(c) States that the holder does not intend to abandon, but instead to
preserve, the holder’s rights in the mineral interest.
R.C. 5301.56(C)(1). A claim that is properly filed and recorded, pursuant to R.C.
5301.56(C), “preserves the rights of all holders of a mineral interest in the same
lands.” R.C. 5301.56(C)(2).
{¶51} R.C. 5301.52 explains what the notice must contain to be effective and
entitled to recording. According to R.C. 5301.52, to be effective, the notice shall
satisfy the following requirements: (1) be in the form of an affidavit; (2) state the
nature of the claim and the names and addresses of the persons benefitting from the
notice; (3) contain an accurate and full description of the land in particular terms,
except that if the claim is founded upon a recorded instrument the description may be
the same as in the recorded instrument; (4) state the name of each record owner
affected by the notice together with the recording information of the instrument by
which each record owner acquired title; and (5) be made by a person with knowledge
or competent to testify in court.
{¶52} Appellees each filed with the county recorder an affidavit titled “Affidavit
to Preserve Mineral Interest” which stated:
I am the owner of the following described mineral interest:
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Being all those lands situated in Section 30, Township 12, Range 5,
Perry Township, Carroll County, Ohio as more particularly described in
an instrument from Russell Cain and Florence Cain dated October 30,
1944 and recorded in Volume 28, Page 33, Volume 28, Page 32 and
Volume 28, Page 39, Lease records, Carroll County, Ohio.
I hereby declare that I intend to preserve all my right, title and interest in
the above described minerals.
This language is from the Children’s Deed and references the Davis, Cain, and
Patterson Deeds by volume and page number. Each affidavit begins with an
identification of the state and county in which each affiant currently resides.
{¶53} The trial court held that, although appellees’ notices did not meet all of
the requirements imposed by the ODMA, they served the purposes intended by the
ODMA for such claims, which was to provide a record of the mineral owner’s
intention to retain their minerals. Thus, the trial court concluded that appellees’ notice
preserved their oil and gas rights pursuant to the ODMA. The trial court cited
Cleveland Co-Op Stove, Co. v. Cleveland & P. Ry., 44 Ohio C.C. (N.S.) 260, 34 C.D.
236 (1912) for the rule that descriptions by reference to prior recorded deeds have
been held to be sufficient under Ohio law. Thus, the trial court reasoned, appellees’
reference in their affidavits to the Cain, Davis, and Patterson Deeds adequately
described the property affected and the mineral interest conveyed. Thus, the trial
court concluded that appellees sufficiently complied with the requirements of R.C.
5301.56(C) to preserve their interests.
{¶54} Appellant argues that appellees failed to notify appellant of the filing of
their claims to preserve as required by R.C. 5301.56(H) and also failed to comply
with five of the requirements in R.C. 5301.56(C), which by reference includes the
requirements set forth in R.C. 5301.52.
{¶55} Appellant asserts that appellees failed to identify the affected surface
owner and the surface owner’s recording information. Appellant argues that this is
required by R.C. 5301.52(A)(4) which provides that the notice shall:
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State the name of each record owner of the land affected by the notice,
at the time of its recording, together with the recording information of
the instrument by which each record owner acquired title to the land.
{¶56} The trial court concluded that this was effectively accomplished by the
holder’s affidavit quoted above because “the referenced deeds also identify the
owner of the surface at the time of severance which allows the identification of the
current affected surface owner and the surface owner’s recording information.” We
agree with the trial court. Appellant is the only surface owner here. The purpose of
the affidavit requirements is to give notice to the surface owner or owners of the
preservation claim. Appellant was clearly notified in this case.
{¶57} Next, appellant argues that appellees failed to identify the instrument
through which they acquired their mineral interest. Appellant further asserts that
appellees’ affidavits fail to meet the statutory requirements because they simply
indicate an interest to preserve a mineral interest in the described property and fail to
state that the interest is a one-half interest and not a one hundred percent interest.
Appellant asserts that this is required by R.C. 5301.56(C)(1)(a), which provides that a
claim to preserve shall consist of a notice that states the nature of the mineral interest
claimed and any recording information upon which the claim is based.
{¶58} The trial court concluded that the above quoted affidavit satisfies this
requirement because, by referencing the Davis, Cain, and Patterson Deeds, the
affidavits described the property affected and the mineral interest conveyed and were
the source of the mineral interest to be preserved. Appellant seems to complain that
appellees’ affidavits need to include a reference to where the Children’s Deed is
recorded, i.e., Volume 71, Page 438, as well as Hal’s Deed, Lease Book 71, Page
597.
{¶59} Each of appellees’ affidavits are titled as a notice to preserve a mineral
interest and each clearly indicate a desire to preserve the mineral interests conveyed
in the Davis Deed, as well as the Cain and Patterson Deeds. Thus, the trial court
correctly found compliance here.
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{¶60} Appellant also complains that appellees failed to comply with that part
of R.C. 5301.52(A)(2) which requires that the notices shall state the names and
addresses for whose benefit the notice is being filed.
{¶61} Appellees’ affidavits set forth the state and county in which appellees
reside, but do not include a street address. The trial court concluded that this was
sufficient as it made them easily locatable by anyone who wanted to do so. Clearly,
in this case, this notice was sufficient because appellant was easily able to locate
appellees.
{¶62} Accordingly, appellant’s third assignment of error is without merit and is
overruled.
{¶63} Appellant’s fourth assignment of error states:
THE TRIAL COURT ERRED WHEN IT HELD THAT APPELLANT
SLANDERED APPELLEES’ TITLE TO THE SEVERED MINERAL
INTEREST AT ISSUE BECAUSE APPELLANT HAD NO NOTICE
THAT APPELLEES HAD FILED THEIR DEFECTIVE CLAIMS TO
PRESERVE PRIOR TO COMPLETING R.C. 5301.56’S
ABANDONMENT PROCEDURE.
{¶64} In their counterclaim, appellees alleged that Exhibits K and L to
appellant’s complaint contain false statements about the ownership of oil and gas
rights below the premises. Exhibits K and L both are titled Affidavit of Fact Relating to
Title to Real Estate. Those affidavits represent that the mineral interests at issue here
have been abandoned. Appellees complained appellant filed these affidavits after
they recorded their intent to preserve their mineral interests. They asserted they
suffered actual and special damages as they were unable to lease or transfer their oil
and gas interests.
{¶65} Appellant now argues that the trial court finding that appellees were
entitled to summary judgment on their counterclaim for slander of title because there
was no evidence of malice, there was no evidence that appellees were damaged by
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appellant’s filings, and, since the counterclaims were limited to the abandonment
affidavit, the claim is time-barred.
{¶66} To prevail on a slander of title claim, one must prove the publication of
a slanderous statement which disparages one’s title; that the statement was false;
that the statement was made with malice or reckless disregard of its falsity; and that
the statement caused actual or special damages. Cupside Properties, LTD., v. Earl
Mechanical Services, Inc., 6th Dist. No. L-14-1253, 2015-Ohio-5019, ¶ 37, citing
Green v. Lemarr, 139 Ohio App.3d 414, 430-431, 744 N.E.2d 212 (2d Dist.2000).
{¶67} The trial court determined that appellant recorded a defective
instrument that purported to abandon interests owned by appellees on properties in
which appellant had no interest, i.e., all of the mineral interests conveyed by the
Children’s and Hal’s Deeds. This, the trial court concluded, deprived appellees of
royalties due for oil and gas from their mineral interests. The trial court awarded each
appellee one dollar as nominal damages.
{¶68} The trial court did not identify any evidence which might support a
conclusion that the actions of appellant were malicious or reckless. Instead, the trial
court relied upon its conclusion that appellant recorded defective documents that
purported to abandon mineral interests owned by appellees, including mineral
interests in properties over which appellant did not own the surface lands. This
caused, according to the trial court, the property records of Carroll County to
incorrectly reflect that all of appellees’ mineral interests conveyed by the Children’s
and Hal’s Deeds had been forfeited. More is needed to prove that appellant’s actions
were malicious or reckless.
{¶69} A failed attempt to meet the requirements of the ODMA alone does not
establish that the failed attempt was malicious or reckless. Each party here believed
the other failed to meet the statutory requirements. For this reason, the trial court
erred in granting summary judgment in favor of appellees on their slander of title
claim.
{¶70} Accordingly, appellant’s fourth assignment of error has merit and is
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sustained.
{¶71} Appellant’s fifth assignment of error states:
THE TRIAL COURT ERRED WHEN IT HELD THAT APPELLEE,
HARRIET LUCINDA HANNON, DID NOT SLANDER APPELLANT’S
TITLE TO HER MINERAL RIGHTS WHEN APPELLEE, HARRIET
LUCINDA HANNON, RECORDED A MEMORANDUM OF OIL AND
GAS LEASE BASED UPON LEGALLY DEFECTIVE TITLE
DOCUMENTS.
{¶72} Appellant argues the trial court erred in granting summary judgment in
favor of Appellee-Harriet on her slander of title claim.
{¶73} This assignment of error is contingent upon a finding that appellant
successfully reunited the oil and gas rights previously held by appellees to her
surface land and appellees failed to preserve their interests. Since we have
concluded that appellees preserved their interest, the trial court’s grant of summary
judgment on appellant’s slander of title claim is correct.
{¶74} Accordingly, appellant’s fifth assignment of error is without merit and is
overruled.
{¶75} Appellant’s sixth assignment of error states:
THE TRIAL COURT ERRED WHEN IT HELD APPELLEE, HARRIET
HANNON, DID NOT OWE APPELLANT A DUTY OF REASONABLE
CARE WHEN RECORDING DOCUMENTS WHICH BURDENED
APPELLANT’S TITLE TO HER REAL PROPERTY AND ITS MINERAL
RIGHTS.
{¶76} Appellant argues the trial court erred in granting summary judgment in
favor of Appellee-Harriet on her negligence claim.
{¶77} This assignment of error is also contingent upon a finding that appellant
successfully reunited the oil and gas rights previously held by appellees to her
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surface land and appellees failed to preserve their interests. Since we have
concluded that appellees preserved their interest, the trial court’s grant of summary
judgment on appellant’s negligence claim is correct.
{¶78} Accordingly, appellant’s sixth assignment of error is without merit and is
overruled.
{¶79} For the reasons stated above, the trial court’s judgment is hereby
reversed only as to its grant of summary judgment in favor of appellees on their
slander of title claim. The trial court’s judgment is affirmed in all other respects.
Waite, J., concurs.
DeGenaro, J., concurs.