[Cite as Jefferis Real Estate Oil & Gas Holdings, L.L.C. v. Schaffner Law Offices, L.P.A., 2017-Ohio-1013.]
STATE OF OHIO, BELMONT COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
JEFFERIS REAL ESTATE OIL & GAS ) CASE NO. 14 BE 0019
HOLDINGS, LLC, )
)
PLAINTIFF-APPELLEE , )
)
VS. ) OPINION
)
SCHAFFNER LAW OFFICES, L.P.A., )
DAVID K. SCHAFFNER, et al., )
)
DEFENDANTS-APPELLANTS. )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas of Belmont County, Ohio
Case No. 13CV323
JUDGMENT: Reversed and Remanded.
APPEARANCES:
For Plaintiff-Appellee: Atty. Todd M. Kildow
Atty. Robert D. Plumby
Atty. Cory M. DelGuzzo
Phillips, Gardill, Kaiser & Altmeyer, PLLC
197 West Main Street
St. Clairsville, Ohio 43950
For Defendants-Appellants: Atty. David K. Schaffner
Schaffner Law Offices, Co., L.P.A.
132 Fair Avenue, NW
New Philadelphia, Ohio 44663
JUDGES:
Hon. Carol Ann Robb
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: March 17, 2017
[Cite as Jefferis Real Estate Oil & Gas Holdings, L.L.C. v. Schaffner Law Offices, L.P.A., 2017-Ohio-1013.]
ROBB, P.J.
{¶1} Defendants-Appellants Schaffner Law Offices, L.P.A. et al. appeal the
decision of the Belmont County Common Pleas Court granting judgment on the
pleadings in favor of the surface owners (nka substituted Plaintiff-Appellee Jefferis
Real Estate Oil & Gas Holdings, LLC) on their claim to reunite minerals underlying
their land with the surface. The trial court found a severed one-half mineral interest
was abandoned and vested in the surface owners under the 1989 Dormant Mineral
Act. Appellants set forth three assignments of error contesting the application of the
1989 Dormant Mineral Act. Due to recent Ohio Supreme Court decisions finding this
version of the act cannot be applied to claims made after the 2006 amendments, the
first two assignments of error have merit and the third assignment of error
(contending the 1989 version was unconstitutional) is moot.
{¶2} Appellee suggests we uphold the judgment due to alternative theories
presented below as to abandonment under the 2006 Dormant Mineral Act and/or
extinguishment under the Marketable Title Act, claiming the surface owners had an
unbroken chain of title for more than forty years. Appellants set forth arguments in
opposition. However, the trial court did not rule on these two alternative theories.
Therefore, the issues surrounding abandonment under the 2006 Dormant Mineral Act
or extinguishment under the Marketable Title Act are not ripe for this court’s review.
The trial court’s decision finding abandonment under the 1989 Dormant Mineral Act is
reversed, and the case is remanded for further proceedings.
STATEMENT OF THE CASE
{¶3} In 1936, John W. Kirk and Helen S. Kirk sold property in Belmont
County but reserved one-half of the minerals. In 1987, John W. Kirk died as a
resident of Texas, and an ancillary administration of his estate was filed in the
Belmont County Probate Court. Helen predeceased him. The next-of-kin listed in his
estate were his surviving spouse Wilma Kirk and his children: Jane Hinch, Barbara
Turner, Diane Palmer, Marilyn Wright, and John D. Kirk. Barbara Turner died in 2006
and the next-of-kin listed in her estate were Edward Turner and Lenane Smith. John
D. Kirk died in 2004. It is claimed none of these estate inventories mentioned the
mineral interest.
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{¶4} In 2004, the surface with its unsevered half of the minerals was
transferred to the original plaintiffs-appellees as follows: 4.430 acres to Thomas J.
Jefferis, Jr., Trustee; 4.463 acres to Thomas J. Jefferis, Sr., Trustee; 2.989 acres to
John P. Jefferis, Trustee; 5.105 acres to Robin L. Jefferis, Trustee; and 1.102 acres
to William E. Farson and Judith E. Farson. (Jefferis Real Estate Oil & Gas Holdings,
LLC was substituted as Appellee on appeal).
{¶5} On March 16, 2013 and March 22, 2013, the surface owners published
notice of abandonment in the newspaper. See R.C. 5301.56(E)(1) (service by
certified mail to each holder, successor, or assignee; if service cannot be completed
to any holder, then publication). An affidavit of abandonment was filed in the Belmont
County Recorder’s office on May 10, 2013. See R.C. 5301.56(E)(2) (at least 30 but
not more than 60 days after notice of abandonment).
{¶6} On May 14, 2013, a claim to preserve the mineral interest was filed in
the recorder’s office by David K. Schaffner as counsel for Peter Watt, Richard Watt,
Michael Watt, and Jenny Robinson, who are the heirs/children of Jane Hinch,
daughter of John W. Kirk. See R.C. 5301.56(H)(1)(a) or (b) (within 60 days after
notice was served or published, holder or holder’s successors or assignees can file
claim to preserve or affidavit identifying savings event). This filing named the
successor holders to the mineral interest reserved by John W. Kirk and Helen S. Kirk
as: Wilma Kirk, John D. Kirk, Jane Hinch, Barbara Turner, Diane Palmer, Marilyn
Wright, the four aforenamed children of Jane Hinch, Edward Turner, Margaret R.
Kirk, Karl E. Palmer, Lenane Smith, and other unidentified heirs at law of John and
Helen Kirk.
{¶7} On May 15, 2013, similar claims were filed in the recorder’s office by:
Marilyn Wright (child of John W. Kirk, the original holder); Karl E. Palmer (child of
Diane Palmer); Margaret R. Kirk (the widow of John D. Kirk); Lenane Smith and
Edward Turner (the children of Barbara Turner). On September 4, 2013, the surface
owners filed a complaint against these five claimants; also named as defendants
were Attorney Schaffner (who filed the claim to preserve on behalf of the children of
Jane Hinch) and Schaffner Law Offices, L.P.A. (who prepared the affidavits).
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{¶8} The complaint sought quiet title of the severed mineral interest and a
declaratory judgment finding the mineral interest abandoned under either the 1989 or
the 2006 Dormant Mineral Act and extinguished under the Marketable Title Act. The
complaint also alleged the claims were fraudulent and sought damages for slander of
title. The surface owners asserted there were no savings events or title transactions
to preserve the mineral interest. In addition, it was claimed Appellants had no
standing to file a claim to preserve; they alleged the heirs are not successor holders if
the record holder’s estate did not list the mineral interest as an asset.
{¶9} On October 7, 2013, Appellants filed an answer and a counterclaim
seeking a declaration that they owned the severed mineral interest. As to the 2006
Dormant Mineral Act, they alleged a failure to serve the notice of abandonment by
certified mail before resorting to publication. Regardless, they pointed to their timely
recorded claims to preserve under the 2006 Dormant Mineral Act. They argued
against the application of the 1989 Dormant Mineral Act and alternatively claimed the
interest was preserved under that version of the act. Appellants also pointed to the
filing of the record holder’s will in probate court in 1987 as a title transaction.
{¶10} On November 14, 2013, the surface owners filed a reply to the
counterclaim and a motion for judgment on the pleadings. They argued the severed
mineral interest automatically vested in the surface owner under the 1989 Dormant
Mineral Act due to a lack of a savings event. Regarding the 2006 Dormant Mineral
Act, the surface owners claimed service of the notice of abandonment was not
required as to non-holders and the claim to preserve filed in the recorder’s office by
various heirs was ineffective as they are not successors of the holder merely
because they are descendants of the holder. As to the Marketable Title Act, the
surface owners argued the reservation of the mineral interest was extinguished as
the minerals were severed in 1936, the root title deed of the surface was filed in
1960, and more than forty years passed with an unbroken chain of title. They
claimed there were no title transactions as to the severed minerals because no
mineral interest was listed in the record holder’s estate.
{¶11} On January 13, 2014, Appellants filed their response to the motion for
judgment on the pleadings. As to the 1989 Dormant Mineral Act, Appellants urged
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the former statute did not call for automatic abandonment and pointed out no surface
owner asserted a claim for abandonment before the 2006 Dormant Mineral Act went
into effect. They asserted the use of a 1989 statute, which was repealed in 2006, to
cause automatic forfeiture of their interest would be contrary to the provision in Article
I, Section 19 of the Ohio Constitution: “Private property shall ever be held inviolate *
* *.” They also claimed the surface owners could not use the 1989 Dormant Mineral
Act because they elected a remedy by publishing notice under the 2006 Dormant
Mineral Act.
{¶12} As to the 2006 Dormant Mineral Act, they urged an heir can qualify as a
holder or a successor to a holder, citing R.C. 5301.56(A)(1) (which defines a holder
as the record holder and any person who derives their rights from or has a common
source with the record holder and whose claim does not indicate it is adverse to the
record holder). Appellants complained service of notice of abandonment was not
attempted by certified mail before resort was made to publication. In any event,
Appellants said they preserved their rights by filing timely claims to preserve,
emphasizing a claim filed by one holder preserves the interest for all holders. See
Dodd v. Croskey, 143 Ohio St.3d 293, 2015-Ohio-2362, 37 N.E.3d 147, ¶ 28, citing
R.C. 5301.56(C)(2). Appellants also stated the mineral interest passed under the
residuary clause of John W. Kirk’s will and title passing by will or descent is a title
transaction. On January 14, 2014, the surface owners replied to these arguments.
{¶13} On April 7, 2014, the trial court granted judgment in favor of the surface
owners on their quiet title claim and declared they owned 100% of the minerals
underlying their property. The claims to preserve were declared void. The court did
not award damages and ordered both sides to pay their own costs. The trial court
stated the 1989 Dormant Mineral Act was a self-executing statute by which mineral
interests shall be deemed abandoned and automatically vested in the surface owners
if no savings event occurred. The court found abandonment automatically occurred
on March 22, 1992 (at the end of the statute’s three-year grace period) as there were
no savings events in the twenty years prior to that date. The court stated the mineral
interest was not listed in the inventory of an estate and there was no recorded
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transfer. The court concluded any passing of assets without a recording in the
recorder’s office could not qualify as a savings event under R.C. 5301.56.
{¶14} Appellants filed a timely notice of appeal from the April 7, 2014
judgment on the pleadings. They filed their brief on August 20, 2014. Appellee’s
brief was filed in October 2014. Appellants sought to stay the appeal pending the
Ohio Supreme Court’s decision in various Dormant Mineral Act cases. On November
17, 2014, this court granted the request to stay the appeal. The stay was lifted by
this court’s October 14, 2016 judgment entry.
1989 Dormant Mineral Act
{¶15} The 1989 Dormant Mineral Act provided a mineral interest shall be
deemed abandoned and vested in the surface owner if there were no savings events
within the preceding twenty years. The Act was effective on March 22, 1989 and
contained a three-year grace period, making March 22, 1992 a dispositive date. The
2006 Dormant Mineral Act contained amendments providing notice to holders before
abandonment and the chance to file post-notice claims to preserve, among other
changes.
{¶16} Appellants set forth three assignments of error. All three assignments
of error deal with the 1989 Dormant Mineral Act, arguing the 1989 version of the act:
(1) cannot be applied to claims asserted after the 2006 amendments; (2) did not
result in automatic vesting of mineral interests in the surface owner; and (3) was
unconstitutional. Appellants conclude the 2006 Dormant Mineral Act rather than the
1989 Dormant Mineral Act is applicable.
{¶17} During the stay of this case, the Ohio Supreme Court held the 1989
Dormant Mineral Act was not self-executing and did not “automatically transfer the
interest from the mineral rights holder to the surface owner by operation of law.”
Corban v. Chesapeake Exploration, L.L.C., __ Ohio St.3d __, 2016-Ohio-5796, __
N.E.3d __, ¶ 26-28 (plurality); id. at ¶ 43, 104 (Kennedy, J., concurring in this part of
decision). “Rather, a surface holder seeking to merge those rights with the surface
estate under the 1989 law was required to commence a quiet title action seeking a
decree that the dormant mineral interest was deemed abandoned.” Id. at ¶ 28.
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Dormant mineral interests did not automatically pass by operation of
law to the surface owner pursuant to the 1989 law. Thus, as of June
30, 2006, any surface holder seeking to claim dormant mineral rights
and merge them with the surface estate is required to follow the
statutory notice and recording procedures enacted in 2006 by H.B. 288.
These procedures govern the manner by which mineral rights are
deemed abandoned and vested in the surface holder and apply equally
to claims that the mineral interests were abandoned prior to June 30,
2006.
Id. at ¶ 31. See also id. at ¶ 43 (Kennedy, J., concurring) (“the 2006 version of the
DMA applies to all claims asserted after June 30, 2006”). The Court also found the
application of the 2006 Dormant Mineral Act to claims filed after its effective date
does not impair vested rights in violation of the Retroactivity Clause. Id. at ¶ 32, 35.
{¶18} In another case, the Court reiterated: “In Corban, we held that the 2006
version of the Dormant Mineral Act applies to all claims asserted after 2006 alleging
that the rights to oil, gas, and other minerals automatically vested in the owner of the
surface estate prior to the 2006 amendments.” Walker v. Shondrick-Nau, __ Ohio
St.3d __, 2016-Ohio-5793, __ N.E.3d __, ¶ 16. The Court then applied its prior Dodd
holding to find the mineral interest was not abandoned under the 2006 Dormant
Mineral Act due to the timely filing of a claim to preserve after the surface owner’s
notice of abandonment. Id. at ¶ 22, citing Dodd v. Croskey, 143 Ohio St.3d 293,
2015-Ohio-2362, 37 N.E.3d 147.
{¶19} Based upon Corban and Walker, the Appellants’ first two assignments
of error have merit. Appellants’ third assignment of error (arguing the 1989 version
was unconstitutional) is moot. See, e.g., Tribett v. Shepherd, __ Ohio St.3d __,
2016-Ohio-5821, __ N.E.3d __, ¶ 1 (where the Court heard oral arguments on the
constitutionality of the 1989 version but then disposed of the case based upon
Corban). In accordance, the mineral interest underlying the subject property was not
automatically abandoned under the 1989 Dormant Mineral Act. The trial court’s
decision, finding the mineral interest was abandoned and automatically vested in the
plaintiffs on March 22, 1992, under the 1989 Dormant Mineral Act, is reversed.
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ISSUES NOT RULED UPON BY THE TRIAL COURT
{¶20} A plaintiff can raise alternative theories of recovery in case one theory
is not accepted by the trial court. See, e.g., Eisenbarth v. Reusser, 7th Dist. No.
13MO10, 2014-Ohio-3792, ¶ 38. See generally Kamposek v. Johnson, 11th Dist. No.
2003-L-124, 2005-Ohio-344, ¶ 26. The plaintiffs raised the 2006 Dormant Mineral
Act in the complaint as an alternative to the 1989 Dormant Mineral Act. The
complaint also asserted the severed mineral interest was “null and void” as the
plaintiffs had an unbroken chain of title for more than forty years with a root deed
recorded on October 26, 1960, citing the following portions of the Marketable Title
Act: R.C. 5301.47, R.C. 5301. 49, R.C. 5301.50, and R.C. 5301.53.
{¶21} In 1961, Ohio enacted the Marketable Title Act in R.C. 5301.47 through
R.C. 5301.56 in order to extinguish interests and claims in land existing before the
root of title. Corban, __ Ohio St.3d __, 2016-Ohio-5796 at ¶ 17. Pursuant to R.C.
5301.50, “record marketable title shall be held by its owner and shall be taken by any
person dealing with the land free and clear of all interests, claims, or charges
whatsoever, the existence of which depends upon any act, transaction, event, or
omission that occurred prior to the effective date of the root of title.” All such interests
“are hereby declared to be null and void.” R.C. 5301.50.
{¶22} A person who has an unbroken chain of title of record to any interest in
land for forty years or more has a marketable record title to such interest. R.C.
5301.48. A marketable record title is defined as “a title of record, as indicated in
section 5301.48 of the Revised Code, which operates to extinguish such interests
and claims, existing prior to the effective date of the root of title, as are stated in
section 5301.50 of the Revised Code.” R.C. 5301.47(A). Root of title is defined as
“that 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). The effective date of the root of title is the date it was recorded. Id.
{¶23} The record marketable title is subject to various listed interests and
exceptions. R.C. 5301.49; R.C. 5301.53. For instance, the record marketable title is
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subject to “[a]ny 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 * * *.” R.C. 5301.49(D) (“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”).
{¶24} 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).
{¶25} These definitions apply to “section 5301.47 to 5301.56, inclusive,” and
R.C. 5301.56 is the Dormant Mineral Act. Under the Dormant Mineral Act, a savings
event can occur when “[t]he mineral interest has been the subject of a title
transaction that has been filed or recorded in office of the county recorder of the
county in which the lands are located.” R.C. 5301.56(B)(3)(a). The trial court
concluded no recording occurred in the Belmont County Recorder’s Office, but the
Marketable Title Act’s extinguishment provisions do not depend on the title
transaction being filed in the recorder’s office. Recording in the context of R.C.
5301.49(D) includes filing in the probate court. R.C. 5301.47(B),(C).
{¶26} Appellee suggests the trial court’s judgment can be upheld under the
Marketable Title Act, urging the severed mineral interest was created prior to
Appellee’s October 26, 1960 root of title and forty years passed without any
preservation under R.C. 5301.49, causing the severed interest to be extinguished
under R.C. 5301.50. However, the trial court did not address the extinguishment
claim filed under the Marketable Title Act. The court’s findings regarding the probate
estate were made in connection with its analysis of whether there was a savings
event under the Dormant Mineral Act. The judgment entry did not refer to the
Marketable Title Act or find the mineral interest was extinguished thereunder; nor did
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it make reference to the 1960 deed alleged to be Appellee’s root of title from which
the forty-year period would begin to run.
{¶27} As to the 2006 Dormant Mineral Act, Appellants set forth arguments
unrelated to any assignment of error in their brief; they oppose arguments set forth by
Appellee below. Appellants claim the plaintiffs did not establish an attempt to serve
notice by certified mail return receipt requested for each holder or each holder’s
successor or assignee prior to providing notice by publication. In any event,
Appellants say it is undisputed a timely claim to preserve was filed. They point out a
timely post-notice-of-abandonment claim to preserve filed by one of the holder’s
successors preserves the mineral interest for all of the successors. See Dodd v.
Croskey, 143 Ohio St.3d 293, 2015-Ohio-2362, 37 N.E.3d 147, ¶ 28, citing R.C.
5301.56(C)(2). Appellee claims Appellants were not eligible to file a claim to
preserve because the status as heirs or next-of-kin of a record holder does not make
a person a holder or successor holder. Appellants quote the Dormant Mineral Act’s
definition of a holder as “the record holder of a mineral interest, and any person who
derives the person’s rights from, or has a common source with, the record holder and
whose claim does not indicate, expressly or by clear implication, that it is adverse to
the interest of the record holder.” See R.C. 5301.56(A)(1). Appellants also cite
Black’s Law Dictionary for a definition of a successor as the person who takes over
the roles, rights, or obligations of another. They conclude that an heir who is to
inherit the property by will (or descent) is a successor to the holder.
{¶28} Appellee’s argument (concerning Appellants’ status as holders or
successors of a holder) was not addressed by the trial court. The trial court found
abandonment under the 1989 Dormant Mineral Act after concluding the mineral
interest had not been the subject of a title transaction filed or recorded in the
recorder’s office within the twenty years. See R.C. 5301.56(B)(1)(c)(i) (which does
not relate to who is a holder). The trial court’s factual findings observed notice of
abandonment was served by publication and claims to preserve were filed. However,
the court did not rule on Appellants’ eligibility to file a claim to preserve or on
abandonment under the 2006 Dormant Mineral Act. As Appellants dispute an
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argument made by Appellee below which was not ruled upon in the trial court, we
cannot rule on the issue.
{¶29} In summary, the trial court entered judgment on the pleadings based
upon the 1989 Dormant Mineral Act. The trial court did not rule on the validity of the
claims to preserve filed under the 2006 Dormant Mineral Act. The trial court did not
find the mineral interest was extinguished under the Marketable Title Act or even
mention the 1960 root deed of Appellee’s title. The issues raised by the parties
concerning the 2006 Dormant Mineral Act and the Marketable Title Act are not ripe
for our review. Two recent examples from the Supreme Court of Ohio confirm the
propriety of our abstention.
{¶30} Where a trial court found abandonment under the 1989 Dormant
Mineral Act and refused to reach issues regarding notice and a claim to preserve in
cross-motions for summary judgment, this court concluded the issues were not ripe
for our review. Swartz v. Householder, 7th Dist. Nos. 13 JE 24, 13 JE 25, 2014-Ohio-
2359, 12 N.E.3d 1243, ¶ 46 citing, e.g., Bowen v. Kil-Kare, Inc., 63 Ohio St.3d 84, 88-
89, 585 N.E.2d 384 (1992), fn. 5; Crites v. Anthem Life Ins. Co., 3d Dist. No. 4-12-21,
2013-Ohio-2145, ¶ 8; Farley v. Chamberlain, 4th Dist. No. 03CA48, 2004-Ohio-2771,
¶ 12 (refusing to usurp trial court's function). See also Murphy v. Reynoldsburg, 65
Ohio St.3d 356, 360, 604 N.E.2d 138 (1992) (de novo summary judgment review
does not mean the trial court need not first rule on issues presented in motions). The
Ohio Supreme Court reversed this court’s holding in Swartz as to the 1989 Dormant
Mineral Act. Swartz v. Householder, __ Ohio St.3d __, 2016-Ohio-5817, __ N.E.3d
__, ¶ 1. Significantly, the Court did not remand to this court for consideration of the
issues presented under the 2006 Dormant Mineral Act, which we refused to address.
{¶31} Similarly, in Taylor, we reversed the trial court’s finding of abandonment
under the 1989 Dormant Mineral Act as we found a savings event. We remanded for
further proceedings after refusing to address arguments under the 2006 Dormant
Mineral Act. We reiterated: “because of its resolution of the 1989 DMA rolling look-
back issue, the trial court never considered or ruled on the parties' arguments
surrounding notice under the 2006 DMA. Therefore, this issue is not ripe for our
review.” Taylor v. Crosby, 7th Dist. No. 13 BE 32, 2014-Ohio-4433, ¶ 47, citing Tree
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of Life Church v. Agnew, 7th Dist. No. 12 BE 42, 2014-Ohio-878, ¶ 27 and Conny
Farms, Ltd. v. Ball Resources, Inc., 7th Dist. No. 09 CO 36, 2011-Ohio-5472, ¶ 15.
This decision was affirmed by the Ohio Supreme Court on the basis of the Corban
and Walker cases, and the cause was “remanded to the trial court for a determination
regarding compliance with the 2006 version of the Dormant Mineral Act.” Taylor v.
Crosby, __ Ohio St.3d __, 2016-Ohio-5820, __ N.E.3d __, ¶ 1. The Court thus
upheld our decision to refrain from addressing the issues that were unaddressed by
the trial court.
{¶32} In accordance, the trial court’s entry of judgment on the pleadings under
the 1989 Dormant Mineral Act is reversed due to recent Supreme Court law. We
refrain from addressing arguments on abandonment under the 2006 Dormant Mineral
Act and extinguishment under the Marketable Title Act as the trial court did not rule
on these arguments. The case is remanded for determination by the trial court after
new motions are filed based upon recent precedent which may relate to the
unaddressed issues. See Warner v. Palmer, 7th Dist. No. 14 BE 0038, 2017-Ohio-
___ (reversing the entry of judgment on the pleadings).
{¶33} The trial court’s judgment finding abandonment under the 1989
Dormant Mineral Act is hereby reversed, and the case is remanded for further
proceedings.
Donofrio, J., concurs.
Waite, J., concurs.