McAuley v. Brooker

[Cite as McAuley v. Brooker, 2017-Ohio-9222.]
STATE OF OHIO, NOBLE COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

GUDRUN MCAULEY, ) CASE NO. 17 NO 0445
)
PLAINTIFF-APPELLANT, )
)
VS. ) OPINION
)
DONALD L. BROOKER et al., )
)
DEFENDANTS-APPELLEES. )

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas of Noble County, Ohio
Case No. 214-0146

JUDGMENT: Affirmed.

JUDGES:

Hon. Carol Ann Robb
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: December 18, 2017
[Cite as McAuley v. Brooker, 2017-Ohio-9222.]
APPEARANCES:

For Plaintiff-Appellant: Atty. Daniel P. Corcoran
Atty. Kristopher O. Justice
Theisen Brock
424 Second Street
Marietta, Ohio 45750

For Defendants-Appellees: Atty. Craig J. Wilson
C.J. Wilson Law, LLC
502 S. High St., Suite 200
Columbus, Ohio 43215

Atty. Thomas D. White
Atty. Matthew A. Kearney
White Law Office, Co.
209 N. Washington St.
Millersburg, Ohio 44654

Atty. J. Emens
Emens & Wolper Law Firm
One Easton Oval, Suite 550
Columbus, Ohio 43219
[Cite as McAuley v. Brooker, 2017-Ohio-9222.]

ROBB, P.J.

{¶1} Plaintiff-Appellant Gudrun Ann McAuley appeals the decision of Noble
County Common Pleas Court granting summary judgment in favor of Defendants-
Appellees Donald Brooker, Roger Gantz, Shirley Gantz, Sidney Karin, Jack Morris,
and Catherine Morris. There are two issues raised in this appeal.
{¶2} The first issue is whether the reservation in the 1961 deed for oil, gas,
and mineral interest owned by Cora retained the interest for Cora’s heirs, or was that
interest conveyed with the surface estate in 1961 to Appellant’s predecessor in title?
{¶3} The second issue is whether the mineral interest was abandoned and
vested under the 2006 Ohio Dormant Mineral Act. Specifically, Appellant contends
the filing of a claim to preserve under R.C. 5301.56(H) does not prevent the
conclusive presumption of abandonment under R.C. 5301.56(B).
{¶4} As to the first issue, we conclude Cora Atkinson’s estate reserved the
mineral interest. The argument raised in the second issue is the same argument
raised and found meritless in Bayes v. Sylvester, 7th Dist. No. 13 MO 0020, 2017-
Ohio-4033, ¶ 24-26. Thus, on the basis of that case, the second issue also has no
merit. Accordingly, the trial court’s grant of summary judgment is affirmed.
Statement of the Facts and Case
{¶5} Appellant acquired a tract of land in Jefferson Township, Noble County,
Ohio in 1998.
{¶6} It is undisputed that a portion of the mineral estate underlying this
property had been sold to George Rice in 1874; the 1874 deed stated Isaac and
Hannah Atkinson sold a portion of the “petroleum, coal, rock or leanbon [?] oil and all
minerals and volatile substances” to George Rice (Rice mineral interest). 1874
Deed.
{¶7} It is also undisputed that Isaac W. Atkinson owned the surface and any
minerals that had not been sold to George Rice. In February 1937, Isaac W.
Atkinson transferred the surface estate to his wife Cora Atkinson and he retained the
mineral estate that had not previously been sold to Rice. The 1937 deed referenced
 -2-

the 1874 mineral conveyance to Rice. The specific language used in the 1937 deed
was:

EXCEPT a certain conveyance by Isaac Atkinson and Hannah Atkinson
to George Rice of about 37 acres, part of said section 8, for a
description of said tract, reference is hereby had to records of Noble
County, Ohio, of all the oil and mineral underlying said tract described
in said conveyance above referred to. Said premises of 63 acres more
or less, being parts of the same premised deeded to William L. Atkinson
by Isaac Atkinson and his wife, Hannah Atkinson and Robert F.
Lorckson [?]. RESERVING however from the operation of this deed the
undivided interest of the oil, gas, coal and other minerals in and under
this tract of land as heretofore described together with the right to
operate and produce the same, except the Rice conveyance of 37
acres, hereinbefore set out.

1937 Deed.
{¶8} It is undisputed Isaac W. Atkinson died intestate in 1959 and Cora
Atkinson inherited his mineral interest under Ohio’s laws of intestate succession.
Cora Atkinson died in 1960. Her will devised an equal 1/3 interest to Margaret
Morris, Donald L. Booker, and Smith Ballentine. Appellees are the devisees and/or
heirs of the devisees.
{¶9} In 1961, Cora Atkinson’s estate, through the executor L.C. Young, sold
the real property to Delmar G. Lewis and Betty M. Lewis, Appellant’s predecessors in
title. The 1961 deed contains the following language:

RESERVING from the operation of this deed the undivided interest in
the oil, gas, coal and other minerals underlying said premises and
reserved in a deed from Isaac Atkinson and Hannah Atkinson to
George Rice and further reserved in a deed from Isaac W. Atkinson to
Cora Atkinson, in Volume 89 at Page 576, Deed Record of Noble
County, Ohio.
 -3-

1961 Executor’s Deed.
{¶10} Appellant attempted to serve a notice of abandonment on Appellee
Donald L. Booker by certified mail on October 16, 2013. After certified mail failed, a
notice of abandonment was published on October 28, 2013 in a newspaper of
general circulation in Noble County. The published notice was directed to the heirs
and assigns of Cora Atkinson. On December 17, 2013 Appellant filed an “Affidavit of
Abandonment” in the Noble County Recorder’s Office. A notice of preservation was
filed by Appellee Sidney Karin on December 20, 2013 preserving Appellees alleged
interest.
{¶11} In September 2014, Appellant filed a complaint for quiet title in Noble
County Common Pleas Court. Appellant sought to have the minerals underlying her
property deemed abandoned and reunited with the surface. Appellees, along with
others, were listed as defendants to this action.
{¶12} Following discovery, the parties filed their respective summary
judgment motions. 11/15/16 Defendants’ Motion for Summary Judgment; 12/16/16
Plaintiff’s Motion for Summary Judgment. Appellees argued the 1961 reservation
reserved the Atkinson mineral interest (the mineral interest Cora inherited from Isaac
W. Atkinson). They further argued the notice of preservation preserved their interest.
Appellant argued the 1961 reservation did not reserve the Atkinson mineral interest,
but rather was a notification of the Rice mineral interest that was conveyed to Rice in
the 1874 deed and restated in the 1937 deed. She alternatively argued the notice of
preservation did not preserve the interest, because the filing of a claim to preserve
under R.C. 5301.56(H) does not prevent the conclusive presumption of abandonment
under R.C. 5301.56(B).
{¶13} The trial court granted Appellees’ summary judgment motion and
denied Appellant’s summary judgment motion. 2/22/17 J.E. The trial court stated the
Atkinson mineral interest was reserved by Cora’s estate under the 1961 deed. It
further held the notice to preserve preserved the mineral interests.
{¶14} Appellant timely appealed the trial court’s decision.
Assignment of Error
 -4-

“The trial court erred in granting Defendants-Appellees’ motion for summary
judgment and denying Appellant’s motion for summary judgment.”
{¶15} An appellate court reviews the granting of summary judgment de novo;
we apply the same test as the trial court. Comer v. Risko, 106 Ohio St.3d 185, 2005-
Ohio-4559, 833 N.E.2d 712, ¶ 8. A trial 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. Civ.R. 56(C).
{¶16} This assignment of error is divided into two parts. The first addresses
the 1961 deed language. The second addresses the 2006 ODMA and whether the
filing of a claim to preserve under R.C. 5301.56(H) prevents the conclusive
presumption of abandonment under R.C. 5301.56(B).
1961 Deed
{¶17} In the case of contracts, deeds, or other written instruments, the
construction of the writing is a matter of law, which is reviewed de novo. Long Beach
Assn., Inc. v. Jones, 82 Ohio St.3d 574, 576, 697 N.E.2d 208 (1998). Under a de
novo review, an appellate court may interpret the language of the contract
substituting its interpretation for that of the trial court. Witte v. Protek Ltd., 5th Dist.
No. 2009CA00230, 2010-Ohio-1193, ¶ 6, citing Children's Medical Center v. Ward,
87 Ohio App.3d 504, 622 N.E.2d 692 (2d Dist.1993).
{¶18} Written instruments “are to be interpreted so as to carry out the intent of
the parties, as that intent is evidenced by the contractual language.” Skivolocki v.
East Ohio Gas Co., 38 Ohio St.2d 244, 313 N.E.2d 374 (1974), paragraph one of the
syllabus. “The principles of deed construction dictate that a court presumes that a
deed expresses the intentions of the grantor and grantee at the time of execution. * *
* A court cannot interpret the parties' intent in a manner contrary to the clear,
unambiguous language of the deed.” American Energy Corp. v. Datkuliak, 174 Oho
App.3d 398, 2007–Ohio–7199, ¶ 50. If the terms of the written instrument are clear
and unambiguous, courts must give the words their plain and ordinary meaning and
may not create a new contract by finding the parties intended something not set out
 -5-

in the contract. Alexander v. Buckeye Pipe Line, 53 Ohio St.2d 241, 246, 374 N.E.2d
146 (1978).
{¶19} However, when the plain language of the written instruments is
ambiguous, then a court can look to parol evidence to resolve the ambiguity and
ascertain the parties’ intent. Illinois Controls, Inc. v. Langham, 70 Ohio St.3d 512,
521, 639 N.E.2d 771 (1994); City of Steubenville v. Jefferson Cty., 7th Dist. No.
07JE51, 2008-Ohio-5053, ¶ 22. This is a primary rule of contract construction.
Envision Waste Services, LLC v. Cty. of Medina, 9th Dist. Nos. 15CA0104-M and
15CA0105-M, 2017-Ohio-351, ¶ 15, quoting Michael A. Gerard, Inc. v. Haffke, 8th
Dist. No. 98488, 2013-Ohio-168, ¶ 14.
{¶20} Terms in a contract are ambiguous if their meaning cannot be
determined from reading the entire contract, or if they are reasonably susceptible to
multiple interpretations. First Natl. Bank of Pennsylvania v. Nader, 9th Dist. No.
16CA0004-M, 2017-Ohio-1482, ¶ 25. Parol evidence is used only to interpret the
terms, and not to contradict the terms. Id., citing Blosser v. Enderlin, 113 Ohio St.
121, 134, 148 N.E. 393 (1925). “The decision as to whether a contract is ambiguous
and thus requires extrinsic evidence to ascertain its meaning is one of law.” Nader,
quoting Ohio Historical Soc. v. Gen. Maintenance and Eng. Co., 65 Ohio App.3d 139,
146, 583 N.E.2d 340 (10th Dist.1989).
{¶21} If parol evidence fails to clarify the meaning of the contract, then the
secondary rule of contract construction can be used to determine the party’s intent.
Envision Waste Services. The secondary rule requires ambiguities to be construed
against the drafter. Cadle v. D'Amico, 2016-Ohio-4747, 66 N.E.3d 1184, ¶ 33 (7th
Dist.) (Construing a contract against the drafter is a secondary rule of contract
construction, and is applicable when the primary rules of contract construction fail to
clarify the meaning of the contract.). “Where that ambiguity is coupled with a material
issue of fact supported by proper evidentiary materials, summary judgment is
improper.” Envision Waste Services, quoting Town & Country Co–op, Inc. v. Sabol
Farms, Inc., 9th Dist. No. 11CA0014, 2012-Ohio-4874, ¶ 15.
 -6-

{¶22} Thus, our analysis begins with the plain language of the 1961 deed.
This deed states:

RESERVING from the operation of this deed the undivided interest in
the oil, gas, coal and other minerals underlying said premises and
reserved in a deed from Isaac Atkinson and Hannah Atkinson to
George Rice and further reserved in a deed from Isaac W. Atkinson to
Cora Atkinson, in Volume 89 at Page 576, Deed Record of Noble
County, Ohio.

1961 Executor’s Deed.
{¶23} Appellant contends the clear language of this clause notified the
purchasers of the 1874 Rice mineral interest, but it did not reserve the Atkinson
mineral interest. She acknowledges the clause refers to two deeds, the 1874 deed
where Isaac and Hannah Atkinson conveyed the mineral interest to George Rice and
the 1937 deed between Isaac W. Atkinson and Cora Atkinson. She argues the
language used in the clause refers to one singular interest – the Rice mineral
interest. Her argument is based on the words “the interest”; “interest” is used in the
singular and “the” is a word of limitation as opposed to “a” or “an,” which are indefinite
or generalizing. She also contends when the clause states “and further reserved” in
reference to the 1937 deed (where Isaac W. Atkinson reserved the minerals and sold
the surface to his wife Cora) the clause was only further referring to the Rice mineral
interest. It was not creating or identifying an additional reservation. Therefore,
according to her, the estate did not retain Cora’s mineral interest; the 1961 deed
conveyed all of Cora’s interest, which was the surface estate that she acquired in
1937 and the mineral interest she acquired from Isaac W. Atkinson when he died in
1959 without a will.
{¶24} Appellant also cites the doctrine of merger. She contends when Cora
inherited Isaac’s mineral estate through intestate succession, the surface and mineral
estate merged. Appellant insinuates if Cora or her estate wanted to reserve the
 -7-

minerals, they were required to make a separate reservation and not rely on Isaac’s
reservation because those estates merged.
{¶25} Appellees argue the plain language of the 1961 deed reserved the
Atkinson mineral interest. Appellees argue the clause has two sections. The first
section is the general reservation – “RESERVING from the operation of this deed the
undivided interest in the oil, gas, coal and other minerals underlying said premises.”
Appellees contend this section indicated all the oil, gas, and minerals underlying the
premises were excepted and reserved from the conveyance. The second section is
the supplemental language describing what the general reservation encompassed –
“reserved in a deed from Isaac Atkinson and Hannah Atkinson to George Rice and
further reserved in a deed from Isaac W. Atkinson to Cora Atkinson, in Volume 89 at
Page 576, Deed Record of Noble County, Ohio.” Thus, according to Appellees the
reservation is composed of the 1874 Rice mineral interest and the 1937 Atkinson
mineral interest.
{¶26} Appellees contend their reading of the clause is correct for two reasons.
First, it gives meaning to the first part of the clause; reading the clause to mean only
the Rice mineral interest was reserved does not give meaning to the language
“RESERVING from the operation of this deed the undivided interest in the oil, gas,
coal and other minerals underlying said premises.” Second, reading the clause in the
manner proposed by Appellant would give no meaning to the reference to the 1937
deed.
{¶27} In response to Appellant’s merger argument, Appellees contend when
Cora inherited the mineral estate from Isaac W. Atkinson, the surface and the mineral
estate did not merge. They assert the clear language of the 1961 deed indicates
there was no intention for the estates to merge.
{¶28} The trial court found the Atkinson mineral interest was reserved by
Cora’s estate in the 1961 deed. As stated above, we review the clause de novo and
thus, we do not give deference to the trial court’s interpretation.
{¶29} The clause in the 1961 deed states:
 -8-

RESERVING from the operation of this deed the undivided interest in
the oil, gas, coal and other minerals underlying said premises and
reserved in a deed from Isaac Atkinson and Hannah Atkinson to
George Rice and further reserved in a deed from Isaac W. Atkinson to
Cora Atkinson, in Volume 89 at Page 576, Deed Record of Noble
County, Ohio.

1961 Executor’s Deed.
{¶30} This clause can be divided into three parts. The first part is a reference
to the entire mineral estate. The language following the first part modifies it and
defines what the mineral estate encompasses. These two modifiers are descriptions
of two separate mineral severances that make up the entire mineral estate.
{¶31} The first part of the clause states, “RESERVING from the operation of
this deed the undivided interest in the oil, gas, coal and other minerals underlying
said premises.” This is a reference to the entire mineral estate underlying the
surface. The plain language of this phrase indicates this deed is not conveying any
mineral interest.
{¶32} This language is nearly identical to the language used in the 1937 deed
from Isaac W. Atkinson to Cora. As aforementioned, in 1937 Isaac W. Atkinson
conveyed the surface to Cora and excepted the minerals for himself. The 1937 deed
provided notice of the 1874 Atkinson to Rice mineral conveyance; the language of
the deed “excepted” the Rice mineral interest from the conveyance. Following that
exception, the deed stated, “RESERVING however from the operation of this deed
the undivided interest of the oil, gas, coal and other minerals in and under this tract of
land as heretofore described together with the right to operate and produce the
same, except the Rice conveyance of 37 acres, hereinbefore set out.” This language
undisputedly reserved the remaining mineral interest, the Atkinson mineral interest,
and provided notice of the Rice mineral interest. In other words, the deed conveyed
no mineral interest. Use of this same language in the 1961 deed is an indication that
no mineral interest was being conveyed.
 -9-

{¶33} The second part of the clause is “and reserved in a deed from Isaac
Atkinson and Hannah Atkinson to George Rice.” The deed referred to in this clause
is the 1874 deed. In 1874 Isaac Atkinson and Hannah Atkinson sold George Rice all
the minerals underlying a defined 37 acres. Thus, the 1874 conveyance was a
mineral conveyance and the 1874 deed was a mineral deed. In that mineral deed,
Isaac and Hannah did not reserve any minerals to the 37 acres described in the
deed. Also, George Rice did not reserve any minerals, rather he purchased them.
Thus, the use of the word “reserved” in this clause is inaccurate because neither
Isaac and Hannah nor George reserved minerals underlying the 37 acres in the 1874
deed. Therefore, either this clause means nothing because it is an inaccurate
description of what transpired in 1874, or it is an inartfully worded notice of the Rice
mineral interest that George Rice purchased in 1874 and that was memorialized in
the 1874 mineral deed. Regardless, no one disputes the existence of the Rice
mineral interest.
{¶34} The third part of the clause is, “and further reserved in a deed from
Isaac W. Atkinson to Cora Atkinson, in Volume 89 at Page 576, Deed Record of
Noble County, Ohio.” The deed referenced is the 1937 deed. Appellant argues the
language “and further reserved” means this is a further reference to the Rice mineral
interest and is not a reference and reservation of the Atkinson mineral interest. We
disagree. This phrase cannot be a mere reference to the Rice mineral interest
because, in simple terms, the 1937 deed had nothing to do with George Rice and his
mineral interest. Nothing in the 1937 transaction affected or could have affected the
Rice mineral interest because the interest was already established in 1874 and
George Rice was a stranger to the 1937 surface conveyance to Cora and mineral
reservation by Isaac W. Atkinson. Thus, the Rice mineral interest was not “further”
reserved in the 1937 deed; it was not “further” anything in that deed. The only
reservation that occurred in the 1937 deed was Isaac’s reservation of his mineral
interest underlying the premises, which is the Atkinson mineral interest. Thus, the
use of the word “further” cannot be a reference to the Rice mineral interest. It is,
 -10-

however, a reference to the Atkinson mineral reservation, which was created by that
1937 deed.
{¶35} Therefore, when the clause is read as a whole it indicates all the
minerals underlying the property are excluded from the operation of the 1961 deed
with those mineral interests composed of the Rice mineral interest and the Atkinson
mineral interest; the reference to the 1874 deed is notice of the Rice mineral deed,
and the reference to the 1937 deed is the Atkinson mineral reservation and notice of
the prior Rice mineral interest. The language used also indicates Cora’s estate is
reserving any minerals Cora owned at the time of her death, which undisputedly are
the Atkinson mineral interest, and any minerals not reserved or previously conveyed.
{¶36} Appellant argues the doctrine of merger applies and thus, when she
inherited the minerals from Isaac W. Atkinson through intestate succession, the
surface estate and the mineral estate merger. Therefore, in order for Cora’s estate to
reserve the Atkinson mineral interest the estate was required to make a separate
reservation and not rely on Isaac W. Atkinson’s reservation.
{¶37} Recently, we have explained the doctrine of merger:

Pursuant to the doctrine of merger, a lesser estate will be absorbed into
a greater estate when they meet and coincide in the same person.
Gallucci v. Freshour, 4th Dist. No. 96CA18, 1997 WL 548730, *3 (Sept.
8, 1997). To constitute a merger, the two estates must be in one and
the same person, at one and the same time, and in one and the same
right. Colopy v. Wilson, 48 Ohio App.3d 148, 149, 548 N.E.2d 1322
(5th Dist.1989), citing 41 Ohio Jurisprudence 3d (1983) 547, Estates,
Powers, and Restraints on Alienation, Section 135. 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. at 150.

Headley v. Ackerman, 7th Dist. No. 16 MO 10, 2017-Ohio-8030, ¶ 32 (holding merger
was applicable).
 -11-

{¶38} Appellant’s argument fails because either the doctrine of merger is
irrelevant, or the 1961 deed demonstrates there was no intent to merge the surface
and mineral estates. As was stated above, the language of the reservation clause
indicates all minerals are excluded from the operation of the deed and the estate was
reserving any minerals Cora owned and any minerals not reserved or previously
conveyed. Thus, the plain language of the document shows intent to reserve the
minerals regardless of merger.
{¶39} The language of the reservation clause additionally demonstrates a
clear intent for the estates to remain severed. As previously explained, Isaac W.
Atkinson originally owned the surface and unconveyed minerals as one estate. In
1937, Isaac W. Atkinson severed the remaining mineral estate from the surface,
retained this remaining mineral estate, and conveyed the surface estate to his wife
Cora. When he died in October 1959, the mineral estate passed through intestate
succession to Cora. Cora died in November 1960. Prior to Cora and Isaac’s deaths,
the estate remained separate for over 20 years; the record contains no indication the
parties reunited the estates. Cora and Isaac died within 13 months of each other.
The only document in the record to show Cora’s intent regarding the estates is the
1961 deed. The 1961 deed in the first part of the reservation clause uses the same
language used in the 1937 deed, and the 1961 deed in the third part of the
reservation clause specifically refers to the reservation in the 1937 deed. As
explained above the only reservation in the 1937 deed was Isaac W. Atkinson
reserving the unconveyed mineral interest - the Atkinson mineral interest. Therefore,
the language used in the 1961 deed, specifically mimicking the language of the 1937
deed and referencing the 1937 deed, shows intent for the surface and mineral
estates to remain separate.
{¶40} Consequently, for the above stated reasons we conclude the clear and
unambiguous language in the 1961 deed indicates intent for Cora’s estate to reserve
the Atkinson mineral interest. The 1961 conveyance was only for the surface; the
Atkinson mineral interest was excluded from the conveyance.
 -12-

B. 2006 ODMA
{¶41} The record undisputedly indicates the following. In 2013 Appellant
published a notice of abandonment in accordance with the 2006 ODMA. Appellant
also filed an affidavit of abandonment in the Noble County Recorder’s Office on
December 13, 2013. Appellees filed a notice of preservation of mineral interest in
accordance with R.C. 5301.56(H)(1) on December 20, 2013.
{¶42} Appellant agrees the notice to preserve prevented the Atkinson mineral
interest from being abandoned under R.C. 5301.56(H)(2). However, she contends
the Atkinson mineral interest is subject to a conclusive presumption of abandonment
under R.C. 5301.56(B). According to her, a claim to preserve under division (H)(1) is
not a savings event under division (B).
{¶43} This same argument was presented to this court in Bayes. Bayes v.
Sylvester, 7th Dist. No. 13 MO 0020, 2017-Ohio-4033. In Bayes, we explained the
determination of whether the claim to preserve the minerals was governed by the
Ohio Supreme Court’s decision in Dodd v. Croskey and we set forth the holdings
made by the Dodd Court. Bayes, 2017-Ohio-4033 at ¶ 18-25, citing Dodd v.
Croskey, 143 Ohio St.3d 293, 2015-Ohio-2362, 37 N.E.3d 147. We then
acknowledged the argument presented was the same argument presented and
rejected by the Ohio Supreme Court in a motion to reconsider its decision in
Farnsworth v. Burkhart, 150 Ohio St.3d 345, 2016-Ohio-5816, 81 N.E.3d 1223:

In a motion for reconsideration to the Ohio Supreme Court, the
Farnsworth appellants made the identical arguments appellants now
make to this court. Specifically, the Farnsworth appellants argued that
a claim to preserve filed pursuant to R.C. 5301.56(H)(1)(a) is not an
occurrence under R.C. 5301.56(B) that prevents an abandonment
because such a claim must be filed within the 20 years preceding the
notice of abandonment. See Motion for Reconsideration of Appellants,
Virgil Farnsworth and Theresa Farnsworth. The Ohio Supreme Court
denied the motion for reconsideration. Farnsworth v. Burkhart, 147
Ohio St.3d 1439, 2016–Ohio–7677, 63 N.E.3d 157.
 -13-

This case is controlled by the Ohio Supreme Court's decision in Dodd.
Here, appellants published a notice of abandonment on February 2,
2012. Thus, appellees had 60 days from that date to file either an
affidavit or a claim of preservation. They timely filed a claim of
preservation on March 23, 2012. By filing the claim of preservation
within 60 days of publication of notice, appellees halted the
abandonment process instituted by appellants. Thus, the trial court
properly granted summary judgment in appellees' favor and found that
appellees own the Royalty Interest at issue.

Id. at ¶ 24-25.
{¶44} On the basis of that decision, Appellant’s argument fails. Appellees
preserved their minerals within 60 days of the published notice of abandonment; the
notice was published on October 28, 2013 and the preservation of mineral interest
was filed on December 20, 2013.
{¶45} For those reasons, Appellant’s argument regarding the 2006 ODMA
lacks merit.
Conclusion
{¶46} For the foregoing reasons, we hold the clause at issue is unambiguous
and excluded the mineral interest from the conveyance. Accordingly, there is no
merit with the first argument presented. On the basis of Bayes and Dodd, the second
argument also lacks merit. The trial court’s grant of summary judgment for Appellees
is hereby affirmed.

Waite, J., dissents; see dissenting opinion.

DeGenaro, J., concurs.
 -14-

Waite, J., dissenting opinion.

{¶47} I join in the majority's opinion that Appellees preserved their interests

pursuant to the 2006 DMA, however, I cannot agree with the majority’s holding that

the 1961 deed adequately reserved Atkinson’s interest in the minerals and must

dissent for the following reasons.

{¶48} In relevant part, the reservation clause at issue in this appeal states:

{¶49} RESERVING from the operation of this deed the undivided

interest in the oil, gas, coal and other minerals underlying said premises and

reserved in a deed from Isaac Atkinson and Hannah Atkinson to George Rice

and further reserved in a deed from Isaac W. Atkinson to Cora Atkinson, in

Volume 89 at Page 576, Deed Record of Noble County, Ohio.

(1961 Executor’s Deed.)

{¶50} The majority opinion divides this clause into three parts: (1) the

reference to the entire mineral estate; (2) reference to the Rice interest; and (3)

reference to the Atkinson interest. However, a plain reading of the clause reveals

only two parts: the reference to the entire mineral estate and the reference to the

Rice interest.

{¶51} “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. No. 14 MA 0114, 2016-Ohio-4798, 68 N.E.3d 151, citing W. Jefferson v.

Cammelleri, 12th Dist. 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
 -15-

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 are one item. Id.

{¶52} Here, there is no comma separating the Rice reference from the

supposed Atkinson reference. Reading the clause in accordance with the rules of

grammar and common usage, the lack of a comma indicates that the clause is

referring to one interest, the Rice interest, which can be found not only within the

deed from the Atkinsons to Rice but also in the deed from Isaac W. Atkinson to Cora

Atkinson. There is one reservation contained in two sources. This is plain and

unambiguous based on both the language used within the clause and the lack of

punctuation.

{¶53} For this reason, I dissent from the majority Opinion and I would reverse

the judgment of the trial court.