[Cite as Erickson v. Morrison,

.]

COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT

W. RANDAL ERICKSON, ET AL. : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiffs-Appellees : Hon. William B. Hoffman, J. -vs- : Hon. Patricia A. Delaney, J. : PAUL E. MORRISON, ET AL. : Case No. 19CA18 : Defendants-Appellants : OPINION

and

SUSAN GEORGE (fka Logan)

Defendant-Cross-Appellant

CHARACTER OF PROCEEDING: Appeal from the Guernsey County Court of Common Pleas, case no. 17OG441

JUDGMENT: REVERSED IN PART, AFFIRMED IN PART, AND REMANDED

DATE OF JUDGMENT ENTRY: December 30, 2019

APPEARANCES: For Plaintiffs-Appellees: For Defendants-Appellants:

John P. Brody Gregory W. Watts William J. Levendusky Matthew W. Onest Jane K. Gleaves KRUGLIAK, WILKINS, GRIFFITHS KEGLER, BROWN, HILL + RITTER & DOUGHERTY CO., L.P.A. 65 East State St., Suite 1800 4775 Munson St. N.W., P.O. Box 36963 Columbus, OH 43215-4294 Canton, OH 44735-6963

Gary Paul Price Nelson E. Genshaft Chad A. Foisset Anthony C. Chambers PRICE LAW FIRM LLC STRIP, HOPPERS, LEITHART ET AL. 555 City Park Ave. 575 South Third St. Columbus, OH 43215 Columbus, OH 43215 Co-Counsel for Susan George, fka Logan Co-Counsel, Susan George, fka Logan Guernsey County, Case No. 19CA18 2

Delaney, J.

{¶1} Appellants Paul E. Morrison and Vesta G. Morrison (the “Morrisons”) appeal

from the April 17, 2019 Findings of Fact/Conclusions of Law/Judgment Entry of the

Guernsey County Court of Common Pleas. Appellees are W. Randal Erickson, Kathleen

E. Erickson, and Sally Tonning (the “Ericksons”). Defendant/Cross-appellant Susan

George (“George”) appeals from the same judgment.

FACTS AND PROCEDURAL HISTORY

{¶2} This case arose from disputed ownership of mineral rights related to

approximately 139 acres of real property in Washington Township, Guernsey County,

Ohio.

Logan’s creation of the Reservation

{¶3} On February 26, 1926, James T. Logan and Rose L. Logan, husband and

wife, executed a warranty deed transferring the surface rights of the real estate to Richard

Riggs and Alta Riggs. The deed contained the following reservation of the mineral rights

(the “Reservation”):

* * * *.

Excepting and reserving therefrom all coal, gas, and oil with

the right of first parties, their heirs and assigns, at any time to drill

and operate for oil and gas and to mine all coal with further right to

build and maintain reservoirs, pipe lines, and the use of reasonable

necessary roads; the said first parties their heirs and assigns, being

liable and required to pay all taxes assessed against their said

property and any damages caused to growing crops by any of such Guernsey County, Case No. 19CA18 3

operations. All such operations for coal shall be outside of and leave

one acre of solid coal under the dwelling house and under the barn

and no drilling for oil or gas shall be within one hundred yards of the

said dwelling house, barn, and other buildings located on said farm.

* * * *.

{¶4} On February 25, 1941, Logan sold the mineral rights to C.L. Ogle through

execution of a Mineral Deed which described the oil and gas rights as follows:

James T. Logan, a widower and not remarried, transferred to

C.L. Ogle, his heirs and assigns, the following in pertinent part:

* * * *.

This conveyance is intended to convey all of the interest of the

Grantor herein, which consists of certain reservations in that certain

deed executed on the 26th day of February 1926, from James T.

Logan (the grantor herein) and Rose L. Logan (his then wife) to

Edward Riggs and Alta Riggs.

The said reservations conveyed herein consist of all coal, gas,

and oil, with the right of the said grantors James T. Logan and Rose

L. Logan, their heirs and assigns, at any time to drill and operate for

oil and gas, and to mine all coal with the further right to build and

maintain reservoir pipe lines and the use of reasonably necessary

roads, said grantors, their heirs and assigns being liable and required

to pay all taxes assessed against the said property, and any damage

caused to growing crops by any such operations. All Such Guernsey County, Case No. 19CA18 4

Operations for coal shall be outside of and leave one acre of solid

coal under the dwelling house and under the barn, and no drilling for

oil or gas shall be within one Hundred (100) yards of said dwelling

house, barn, and other buildings located on said farm.

* * * *.

{¶5} The Ericksons of the instant case are the heirs of C.L. Ogle. The “Logan

Defendants” referenced throughout the opinion, including cross-appellant Susan George

fka Logan, are the heirs of James T. Logan.

{¶6} Title to the surface rights of the real property was conveyed or transferred

through estate or intestacy recorded documents. Each recorded instrument contains the

Reservation, supra, reproduced in its entirety.

The Morrisons’ deeds contain the Reservation

{¶7} By warranty deed dated April 26, 1978, filed for record May 1, 1978, the

Morrisons took title to the surface rights. The warranty deed contains the Reservation in

its entirety.

{¶8} The Morrisons executed a survivorship deed on June 2, 1983, filed for

record on June 16, 1983, conveying the surface rights of the property to themselves in

joint tenancy with a right of survivorship. The survivorship deed contains the Reservation

in its entirety.

{¶9} The Morrisons executed a quitclaim deed on May 8, 1998, filed for record

on May 12, 1998, conveying the surface rights to the Paul E. Morrison Trust, of which

Paul E. and Vesta G. Morrison are both trustees. The trust deed contains the Reservation

in its entirety. Guernsey County, Case No. 19CA18 5

The 2015 litigation: Logans’ interest extinguished

{¶10} On April 9, 2015, the Morrisons brought an action in the Guernsey County

Court of Common Pleas styled Paul E. Morrison et al. v. Marjorie A. Logan et al. against

the Logan Defendants,1 arguing the Morrisons own both the real estate and the minerals

pursuant to the 1989 version of the Ohio Dormant Mineral Act. The case was docketed

as Guernsey County Court of Common Pleas case number 15 CV 000157.

{¶11} The Morrisons filed a first amended complaint against the Logan

Defendants raising additional claims under the 2006 Ohio Dormant Mineral Act and the

Ohio Marketable Title Act (R.C. 5301.47 et seq.)

{¶12} On January 22, 2016, the trial court granted summary judgment in favor of

the Morrisons. The Court declared that the Logan Defendants’ interest in the Reservation

was extinguished pursuant to the Ohio Marketable Title Act and that the rights to the

severed mineral interests were quieted unto the Morrisons.

{¶13} The Logan Defendants filed a notice of appeal from the trial court’s decision,

but the appeal was subsequently dismissed. 5th Dist. Guernsey No. 17 CA 18.

The instant litigation

{¶14} On August 24, 2017, the Ericksons filed suit seeking declaratory relief and

quiet title. The named defendants included the Morrisons, George, and the Logan

Defendants.2

1 The “Logan Defendants” include Marjorie A. Logan, Susan George fka Logan, Ronald D. Logan, James Farrell Logan, Marjorie E. Logan, Unknown Heirs and Successors of Vivienne Logan, and the Unknown Heirs and Successors of Nellie Logan. 2 An amended complaint was later filed to account for, e.g., deceased defendants and

additional heirs, devisees, legatees, and beneficiaries. The defendants, including Susan George, timely answered the amended complaint. Guernsey County, Case No. 19CA18 6

{¶15} The Morrisons responded with an answer and counterclaim seeking

declaratory judgment and to quiet title pursuant to the Dormant Mineral Act, asserting

they are in full possession of the real estate and the minerals.

{¶16} Defendant and cross-appellant Susan George answered on November 13,

2017.

{¶17} The Ericksons filed a motion for judgment on the pleadings pursuant to

Civ.R. 12(C). The Morrisons responded with a memorandum in opposition and counter-

motion for judgment on the pleadings. George also responded in opposition to the

Ericksons’ motion for judgment on the pleadings.

{¶18} Pursuant to an entry entitled “Findings of Fact/Conclusions of

Law/Judgment Entry” filed April 17, 2019, the trial court granted the Ericksons’ motion for

judgment on the pleadings, declaring as follows:

* * * *.

The Court hereby declares as to Count One: (1) that the

[Morrisons] do not possess any right, title, or interest in the Real

Estate’s oil and gas rights, being the Minerals defined in the

Reservation; (2) that [Ericksons] are the true and rightful owners of

all the Real Estate’s oil and gas rights, being the Minerals defined in

the Reservation.

As to Count Two, the Court hereby quiets title to the Minerals

and determines that [Ericksons] are the sole owners of all Minerals

and that [Morrisons] have no right, title, or interest in the Minerals * *

*. Guernsey County, Case No. 19CA18 7

{¶19} The Morrisons as appellants, and Susan George as cross-appellant, now

appeal from the trial court’s Findings of Fact/Conclusions of Law/Judgment Entry dated

April 17, 2019.

ASSIGNMENTS OF ERROR

{¶20} The Morrisons raise one assignment of error:

{¶21} “I. THE TRIAL COURT ERRED WHEN IT HELD THAT THE SEVERED

MINERAL INTEREST AT ISSUE WAS PRESERVED FROM EXTINGUISHMENT

UNDER THE OHIO MARKETABLE TITLE ACT.”

{¶22} George raises one assignment of error:

{¶23} “I. CROSS-APPELLANT ASSERTS THAT THE TRIAL COURT ERRED IN

GRANTED APPELLEE’S JUDGMENT ON THE PLEADINGS WHERE THERE ARE

CLEARLY MATERIAL FACTUAL ISSUES THAT REMAIN IN DISPUTE.”

ANALYSIS

I.

{¶24} In their sole assignment of error, the Morrisons argue the trial court erred in

finding that the Reservation is an exception to the Ohio Marketable Title Act and is

therefore preserved from extinguishment. We agree.

{¶25} The trial court granted judgment on the pleadings for the Ericksons and

against the Morrisons. Civil Rule 12(C) provides, “after the pleadings are closed but within

such time as not to delay the trial, any party may move for judgment on the pleadings.”

The standard of review of the grant of a motion for judgment on the pleadings is the same

as the standard of review for a Civ.R. 12(B)(6) motion, which requires the appellate court

to independently review the complaint to determine if the dismissal was appropriate. Guernsey County, Case No. 19CA18 8

Ferreri v. The Plain Dealer Publishing Co.,

,

(8th Dist. 2001). A motion for judgment on the pleadings pursuant to Civil Rule 12(C)

presents only questions of law. Peterson v. Teodosio,

,

(1973). The determination of a motion under Civil Rule 12(C) is restricted solely to

the allegations in the pleadings and the nonmoving party is entitled to have all material

allegations in the complaint, with all reasonable inferences to be drawn therefrom,

construed in its favor.

Evidence in any form cannot be considered. Conant v. Johnson,

,

(4th Dist. 1964). In considering such a motion, one

must look only to the face of the complaint. State ex rel. Osborne v. City of North Canton,

5th Dist. Stark No. 2018CA00132,

.

{¶26} A motion to dismiss for failure to state a claim upon which relief can be

granted is a procedural motion that tests the sufficiency of the complaint. State ex rel.

Hanson v. Guernsey Cty. Bd. of Commrs.,

,

(1992). In order to dismiss a complaint for failure to state a claim upon which relief can

be granted, the court must find beyond doubt that the plaintiff can prove no set of facts

warranting relief after it presumes all factual allegations in the complaint are true, and

construes all reasonable inferences in the plaintiff's favor. State ex rel. Seikbert v.

Wilkinson,

,

(1994)

{¶27} In reviewing a Civ.R. 12(B)(6) motion, the court must presume that all facts

presented in the complaint are true but it may not consider any evidence outside of the

complaint. Park v. Acierno,

, 2005–Ohio–1332,

. In considering the complaint, the court may consider certain written instruments that

are attached to the complaint.

citing Civ.R. 10(C) and (D). Guernsey County, Case No. 19CA18 9

{¶28} The definitive issue presented by this case is whether the Reservation is

repeated in the muniments of title with sufficient specificity pursuant to R.C. 5301.49(A)

and the decision of the Ohio Supreme Court in Blackstone v. Moore,

,

,

.

{¶29} The Morrisons argue the recorded instruments containing the Reservation

do not meet the requirements of the Ohio Marketable Title Act (M.T.A.), R.C. 5301.47, et

seq., and that a preserving notice was not filed as required by the M.T.A. The Ericksons

respond that the statutory provisions are not applicable because their interest in the

minerals falls within a statutory exception.

{¶30} As explained in Corban v. Chesapeake Expl., L.L.C.,

,

,

, the General Assembly enacted the M.T.A. to

extinguish interests and claims in land that existed prior to the root of title, with “the

legislative purpose of simplifying and facilitating land title transactions by allowing persons

to rely on a record chain of title.” R.C. 5301.55. The M.T.A. became law nearly fifty years

ago as a means of simplifying land title transactions by allowing persons to rely on a

record chain of title as set forth in the pertinent statutes and by eliminating “ancient

interests” which operate to cloud otherwise clear titles. Evans v. Cormican, 5th Dist.

Licking No. 09 CA 76,

, ¶ 17, internal citations omitted. The Act functions

as “a 40-year statute of limitations for bringing claims against a title of record.”

citing

Collins v. Moran, 7th Dist. Mahoning No. 02 CA 218,

.

{¶31} R.C. 5301.55 states that the Act “shall be liberally construed to effect the

legislative purpose of simplifying and facilitating land title transactions * * *.” This

legislation provides that marketable record title—an unbroken chain of title to an interest Guernsey County, Case No. 19CA18 10

in land for 40 years or more, R.C. 5301.48—“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.” R.C. 5301.50. Marketable

record title therefore “operates to extinguish” all other prior interests, R.C. 5301.47(A),

which “are hereby declared to be null and void,” R.C. 5301.50.

{¶32} Further, “the Marketable Title Act extinguished oil and gas rights by

operation of law after 40 years from the effective date of the root of title unless a saving

event preserving the interest appeared in the record chain of title—i.e., the interest was

specifically identified in the muniments of title in a subsequent title transaction, the holder

recorded a notice claiming the interest, or the interest ‘[arose] out of a title transaction

which has been recorded subsequent to the effective date of the root of title.’”

, citing R.C. 5301.48 and 5301.49.

{¶33} The trial court found the Reservation to be an exception to the M.T.A.

Pursuant to R.C. 5301.49(A), record marketable title shall be subject to:

All interests and defects which are inherent in the muniments

of which such chain of record title is formed; provided that a general

reference in such muniments, or any of them, to easements, use

restrictions, or other interests created prior to the root of title shall not

be sufficient to preserve them, unless specific identification be made

therein of a recorded title transaction which creates such easement,

use restriction, or other interest; and provided that possibilities of

reverter, and rights of entry or powers of termination for breach of Guernsey County, Case No. 19CA18 11

condition subsequent, which interests are inherent in the muniments

of which such chain of record title is formed and which have existed

for forty years or more, shall be preserved and kept effective only in

the manner provided in section 5301.51 of the Revised Code[.]

{¶34} In order to be preserved from extinguishment under the M.T.A., therefore,

any reference or repetition of a severed mineral interest which predates a surface owner’s

root of title must specifically reference the severed mineral interest. The Ericksons

contend the Reservation constitutes a specific identification pursuant to R.C. 5301.49(A),

and the trial court agreed. The Morrisons respond that the Reservation identifies neither

the name of the original grantors (the Logans) nor the transferee of the minerals (C.L.

Ogle).

{¶35} The Ohio Supreme Court recently adopted a three-part test to determine

whether the reference or repetition is specific. Blackstone v. Moore,

,

,

. The Court explained that the statute starts with the

limitation that title is subject to all “interests and defects” in the deed. Blackstone, ¶ 11.

That limitation is then qualified by the indication that a general reference to the interest is

not sufficient unless the general reference includes specific identification of the “record

title transaction” that created the interest.

The Court then stated the statute has a

three-step inquiry: (1) Is there an interest described within the chain of title? (2) If so, is

the reference to that interest a “general reference”? (3) If the answers to the first two

questions are yes, does the general reference contain a specific identification of a

recorded title transaction? Id. at ¶ 12.

{¶36} For ease of reference, we again cite the Reservation: Guernsey County, Case No. 19CA18 12

Excepting and reserving therefrom all coal, gas, and oil with

the right of first parties, their heirs and assigns, at any time to drill

and operate for oil and gas and to mine all coal with further right to

build and maintain reservoirs, pipe lines, and the use of reasonable

necessary roads; the said first parties their heirs and assigns, being

liable and required to pay all taxes assessed against their said

property and any damages caused to growing crops by any of such

operations. All such operations for coal shall be outside of and leave

one acre of solid coal under the dwelling house and under the barn

and no drilling for oil or gas shall be within one hundred yards of the

said dwelling house, barn, and other buildings located on said farm.

{¶37} The question we ask is whether repetition of a severed mineral interest

which does not contain information identifying the owner is a “general reference” or a

“specific reference”. The former has no preserving effect under the M.T.A.; the latter

preserves the interest.

{¶38} Because the term “general reference” is not defined in the act, we look to

the ordinary meaning of the term.

, citing

Stewart v. Vivian,

,

,

, ¶ 26. “General”

is defined as “marked by broad overall character without being limited, modified, or

checked by narrow precise considerations: concerned with main elements, major matters

rather than limited details, or universals rather than particulars: approximate rather than

strictly accurate.”

citing Webster's Third New International Dictionary 944 (2002).

“Specific” is defined as “characterized by precise formulation or accurate restriction (as in Guernsey County, Case No. 19CA18 13

stating, describing, defining, reserving): free from such ambiguity as results from careless

lack of precision or from omission of pertinent matter.”

citing Webster's Third New

International Dictionary at 2187.

{¶39} In Blackstone, the Court noted that the interest at issue in that case—the

Kuhn royalty interest—included details about the interest in question, including by whom

the interest was originally reserved. Id., ¶ 15. The Court ultimately held that “a reference

that includes the type of interest created and to whom the interest was granted is

sufficiently specific to preserve the interest in the record title.” Id., ¶ 18.

{¶40} In the instant case, the Reservation does not state by whom the interest

was originally reserved, nor to whom the interest was granted. We thus agree with the

Morrisons that the Reservation is general pursuant to Blackstone, and does not preserve

the interest in the minerals from extinguishment. Repetition of the Reservation does not

endow it with the missing information, nor does it transform the Reservation from general

to specific.

{¶41} The Reservation does not name the Logans or C.L. Ogle, thus failing to

name to whom the severed interest was granted or reserved. See, Senterra Ltd. v.

Winland, 7th Dist. Belmont No. 18 BE 0051,

[reference is general

because mineral rights are reserved but no indication who reserved those interests;

proceed to third question but no reference in deeds where interests originated or who

reserved those interests]. Despite the repetition of the Reservation, we cannot find it to

be a specific reference pursuant to Blackstone. The inevitable conclusion, pursuant to

R.C. 5301.49(A), is that the Reservation has no preserving effect on the severed interest. Guernsey County, Case No. 19CA18 14

{¶42} We conclude that the severed interest in the Minerals was extinguished by

operation of the M.T.A. and is no longer valid. We therefore reverse the judgment of the

trial court and remand this matter for further proceedings consistent with our opinion

herein. The Morrisons’ assignment of error is therefore sustained.

Cross-Assignment of Error I.

{¶43} George argues in her cross appeal that the trial court erred in granting

judgment on the pleadings because she states in her Answer that the Reservation was

not legally conveyed to Ogle. In other words, a material question of fact exists because

George baldly denies the alleged transfer of the Reservation by the Logans to C.L. Ogle.

We note George does not argue that the deed attached to the Ericksons’ first amended

complaint is deficient; she merely denies the deed.

{¶44} First, we agree with the Ericksons that George’s bald denial despite clear

record of title is insufficient to deny judgment on the pleadings. While we are required to

construe allegations in a light favorable to the nonmovant, we are not required to accept

unwarranted factual inferences. See, N. River Ins. Co. v. Redman,

(2nd Dist. 1933), affirmed,

,

(1934); Mixon v. State

of Ohio,

(6th Cir. 1999).

{¶45} Moreover, the Morrisons assert George’s argument is barred by res judicata

in light of the 2015 litigation. George is an heir of James and Rose Logan. As noted

supra in the statement of facts, the Morrisons filed suit previously seeking to extinguish

the original Logan severed mineral interest pursuant to the M.T.A. In Guernsey County

Court of Common Pleas, case number 15CV000157, the trial court found in favor of the

Morrisons (and against George) that the original Logan reservation was extinguished Guernsey County, Case No. 19CA18 15

under the M.T.A. George filed a notice of appeal from that decision in 5th Dist. Guernsey

NO. 17 CA 18, but the appeal was dismissed for want of prosecution.

{¶46} Res judicata can be divided into two separate subparts: claim preclusion

and issue preclusion. Ohio Kentucky Oil Corp. v. Nolfi, 5th Dist. No. 2013CA00084, 2013-

Ohio-5519,

, ¶ 18, citing Grava v. Parkman Twp.,

,

(1995). The Ohio Supreme Court analyzed the doctrine of claim

preclusion in the Grava decision in 1995.

In the syllabus of Grava, the Ohio Supreme

Court stated that “a valid, final judgment rendered upon the merits bars all subsequent

actions based upon any claim arising out of the transaction or occurrence that was the

subject matter of the previous action” and found that the “1 Restatement of the Law 2d

Judgments (1982), Sections 24—25[are] approved and adopted.” Grava,

,

at syllabus. In Grava, a property owner filed an initial application for

zoning for a proposed business.

,

. After his initial application

was denied, the property owner then filed a second application seeking zoning for the

same building that was the subject of his earlier application under a separate zoning

ordinance regarding nonconforming use.

at 379–380,

.

{¶47} The Ohio Supreme Court stated that they “[e]xpressly adhere to the modern

application of the doctrine of res judicata, as stated in 1 Restatement of the Law 2d,

Judgments (1982), Sections 24—25 and hold that a valid, final judgment rendered upon

the merits bars all subsequent actions based upon any claim arising out of the transaction

or occurrence that was the subject matter of the previous action.”

,

. The Ohio Supreme Court thus adopted the “transactional” approach to res judicata.

The Court determined that Grava's second zoning application was barred by claim Guernsey County, Case No. 19CA18 16

preclusion because the zoning applications for the same building derived from the same

transaction or the same “common nucleus of operative fact.”

,

.

Grava had a “full and fair opportunity to present his case” during his first zoning application

where he did not appeal the denial of the zoning request and “simply failed to avail himself

of all available grounds for relief in the first proceeding.”

,

.

{¶48} Applied to the instant case, the final judgment in the 2015 which

extinguished George’s ownership interest bars her claim. Her failure to perfect an appeal

from the 2015 judgment means she failed to avail herself of all available grounds for relief.

{¶49} The severed mineral interest was thus determined to be extinguished as

between the Morrisons and George pursuant to the final judgment supra. George is

barred by res judicata from claiming she owns the Logan Reservation as between George

and the Morrisons. In the instant case, even if George prevailed against the Ericksons in

her cross-appeal, any interest she may have owned has been conclusively determined to

be owned by the Morrisons.

{¶50} We conclude George is barred from arguing in the instant case that she

owns any interest in the mineral rights affected by the Logan reservation.

{¶51} George’s assignment of error is overruled. Guernsey County, Case No. 19CA18 17

CONCLUSION

{¶52} We hereby sustain the Morrisons’ assignment of error and overrule

George’s assignment of error. The judgment of the trial court is reversed and this matter

is remanded for further proceedings consistent with our opinion herein.

By: Delaney, J.,

Gwin, P.J. and

Hoffman, J., concur.