Jefferis Real Estate Oil & Gas Holdings, LLC v. Schaffner Law Offices, L.P.

109 N.E.3d 1265, 2018 Ohio 3733
CourtCourt of Appeals of Ohio, Seventh District, Belmont County
DecidedSeptember 12, 2018
DocketNo. 17 BE 0042
StatusPublished
Cited by7 cases

This text of 109 N.E.3d 1265 (Jefferis Real Estate Oil & Gas Holdings, LLC v. Schaffner Law Offices, L.P.) is published on Counsel Stack Legal Research, covering Court of Appeals of Ohio, Seventh District, Belmont County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jefferis Real Estate Oil & Gas Holdings, LLC v. Schaffner Law Offices, L.P., 109 N.E.3d 1265, 2018 Ohio 3733 (Ohio Super. Ct. 2018).

Opinion

Robb, P.J.

*1267{¶ 1} The Defendants-Appellants ("Kirk heirs") are the heirs of the original holders of a one-half severed mineral interest and the attorney/firm representing them (David K. Schaffner and Schaffner Law Offices, L.P.A.). They appeal the decision of the Belmont County Common Pleas Court granting summary judgment in favor of the Plaintiff-Appellee Jefferis Real Estate Oil & Gas Holdings, LLC et al. and declaring the plaintiff owns 100% of the minerals underlying its property as a result of abandonment under the 2006 Dormant Mineral Act. The court found the claim to preserve filed after service of the notice of abandonment was not valid because there was no record notice the Kirk heirs were successors or assignees of the mineral interest. However, we have previously held such a holding misconstrues the statutory provisions regarding who can file a claim to preserve and the definition of a holder.

{¶ 2} Where the original record holder's mineral interest was still owned at death, a person to whom the mineral interest passed through will or intestacy is entitled to file a claim to preserve and thwart abandonment of the mineral interest, in a case where the probate filings show the person filing a claim to preserve inherited a share of the record holder's entire estate. The fact the mineral interest was not listed in the inventory of the estate or transferred via a probate courts' certificate of title is not dispositive of the question of whether an heir to a deceased record holder can file a claim to preserve and prevent the mineral interest from being deemed abandoned under the DMA. The trial court's judgment is reversed, and the case is remanded for further proceedings.

STATEMENT OF THE CASE

{¶ 3} In 1936, John W. Kirk and Helen S. Kirk reserved one-half of their minerals when they sold the subject property (less than 20 acres) in Belmont County. Helen died testate in 1965, leaving her estate to her five children. Her estate was administered in Belmont County. John W. Kirk died testate in 1987; his will left the residue of his estate to his children through a trust. He was a resident of Texas, and an ancillary administration of his estate was filed in Belmont County. The next-of-kin listed in his estate were his surviving spouse Wilma Kirk and the five children: Jane Hinch, Barbara Turner, Diane Palmer, Marilyn Wright, and John D. Kirk. Some of these children have died, and their heirs are parties. The parties agree the subject mineral interest was not specifically devised in any pertinent will, and none of the estates listed the mineral interest in an inventory or issued a certificate of transfer regarding the mineral interest.

{¶ 4} On March 16, 2013 and March 22, 2013, the plaintiff published notice of abandonment in the newspaper. See R.C. 5301.56(E)(1) (service by certified mail to *1268each holder, successor, or assignee; if service cannot be completed to any holder, then publication). The plaintiff filed an affidavit of abandonment 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).

{¶ 5} On May 14, 2013, a claim to preserve the mineral interest was filed in the recorder's office. 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). The affidavit for this claim to preserve was signed by Attorney Schaffner as counsel for the children of Jane Hinch: Peter Watt, Richard Watt, Michael Watt, and Jenny Robinson. This claim to preserve named other successor holders to the mineral interest as: Wilma Kirk, John D. Kirk, Jane Hinch, Barbara Turner, Diane Palmer, Marilyn Wright, Edward Turner, Margaret R. Kirk, Karl E. Palmer, Lenane Smith, and other unidentified heirs at law of John and Helen Kirk.

{¶ 6} On May 15, 2013, claims to preserve were filed in the recorder's office by the other children of John W. Kirk or their heirs, with affidavits signed by: Marilyn Wright (a child of the record holders who inherited from both parents); a child of Diane Palmer (Karl E. Palmer); the surviving spouse of John D. Kirk (Margaret R. Kirk); and the children of Barbara Turner (Lenane Smith and Edward Turner).

{¶ 7} On September 4, 2013, the plaintiff filed a complaint against the Kirk heirs who filed claims. The attorney and the law firm involved in filing the claims were also named as defendants, but we refer to the Kirk heirs for simplicity. 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 Kirk heirs filed an answer and a counterclaim seeking a declaration they owned the mineral interest which was not abandoned.

{¶ 8} Initially, the trial court granted judgment on the pleadings in favor of the plaintiffs and declared they owned 100% of the minerals underlying their property. The decision was based on abandonment under the 1989 Dormant Mineral Act. On appeal, we granted a stay pending an Ohio Supreme Court decision on the 1989 DMA. We thereafter reversed the judgment of abandonment under the 1989 DMA due to the Supreme Court's ruling that the former version of the DMA was not self-executing and can no longer be used in lawsuits filed after the enactment of the 2006 DMA. Jefferis Real Estate Oil & Gas Holdings, LLC v. Schaffner Law Offices, L.P.A. , 7th Dist., 2017-Ohio-1013, 86 N.E.3d 966, ¶ 17, citing Corban v. Chesapeake Exploration, L.L.C. , 149 Ohio St.3d 512, 2016-Ohio-5796, 76 N.E.3d 1089 ; Walker v. Shondrick-Nau , 149 Ohio St.3d 282, 2016-Ohio-5793, 74 N.E.3d 427. We remanded for further proceedings on the unaddressed claims, which included abandonment under the 2006 Dormant Mineral Act and extinguishment under the Marketable Title Act. Id. at ¶¶ 2, 32.

{¶ 9} On remand, the plaintiff filed a motion for summary judgment arguing the mineral interest was abandoned under the 2006 DMA and extinguished under the MTA. The Kirk heirs filed an opposition memorandum and a cross-motion for summary judgment. The plaintiff withdrew the motion for summary judgment on the MTA claim.

{¶ 10} On October 8, 2017, the trial court granted summary judgment in favor *1269

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Cite This Page — Counsel Stack

Bluebook (online)
109 N.E.3d 1265, 2018 Ohio 3733, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jefferis-real-estate-oil-gas-holdings-llc-v-schaffner-law-offices-lp-ohctapp7belmont-2018.