Covert v. Koontz
2015 Ohio 228
Ohio Ct. App.2015Background
- Covert acquired fee simple surface property in Monroe County, Ohio, in 2006; the chain of title showed an 1903 sale conveying one-half of oil and gas royalties to W.C. Mooney and others, and later deeds containing reservations of royalty language.
- The 1958 deed (root of title) to Covert's predecessors contained the language: "Further excepting and reserving to Nelson Thomas et al, one half royalty in oil and gas."
- Covert sued (2012) for a declaratory judgment that the earlier severed royalty interest was extinguished under Ohio's Marketable Title Act (OMTA) and that she owned the surface and royalty/leasing rights; service was by publication for multiple defendants.
- The only defendants who answered were heirs of W.C. Mooney; Covert moved for summary judgment arguing the royalty interest was subject to OMTA extinguishment and not preserved by any exception.
- Trial court granted summary judgment to Covert, holding the royalty is an interest in realty subject to OMTA and was not preserved; it also assessed publication costs against the Mooney heirs.
- On appeal this court affirmed summary judgment (following the panel’s Pollock decision) but reversed and remanded the costs award, directing at most a pro rata share of publication costs be charged to the defending heirs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a severed nonparticipating royalty interest is extinguished under the OMTA | Covert: royalty is an interest in realty subject to OMTA; not identified in root or 40‑year muniments, so extinguished | Mooney heirs: royalty is personal property and not subject to OMTA; alternatively, it was preserved by later recorded probate/devise transactions | Court: royalty interest is subject to OMTA; summary judgment for Covert affirmed (panel relied on Pollock) |
| Whether the "et al" in the root deed preserved the 1903 royalty grantee's heirs | Covert: "et al" refers to Rachel Thomas (spouse) and is not specific to Mooney heirs | Mooney heirs: "et al" refers to W.C. Mooney heirs, preserving their interest | Court: "et al" refers to Rachel Thomas; reservation not specific to Mooney heirs; does not preserve interest |
| Whether later probate/devise transfers preserved the interest under OMTA exception R.C. 5301.49(D) | Covert: no evidence of recorded probate transfers preserving interest | Mooney heirs: interest passed through probate within 40 years and thus preserved | Court: no evidence was submitted by defendants to create genuine issue; argument waived/unsupported; preservation not established |
| Whether the trial court properly taxed full publication costs against the defending heirs | Covert: assessed full publication costs as costs of action | Mooney heirs: unfair and no statutory basis to tax full publication fee against them alone | Court: taxing full amount was abuse; reverse and remand to impose at most pro rata share (one‑fifth here) |
Key Cases Cited
- Parenti v. Goodyear Tire & Rubber Co., 66 Ohio App.3d 826 (9th Dist. 1990) (standard of review for summary judgment)
- Doe v. Shaffer, 90 Ohio St.3d 388 (Ohio 2000) (summary judgment standard)
- Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241 (Ohio 1978) (construction of written conveyances is a question of law)
- Graham v. Drydock Coal Co., 76 Ohio St.3d 311 (Ohio 1996) (principles for contract/instrument construction)
- Benda v. Fana, 10 Ohio St.2d 259 (Ohio 1967) (definition of "costs" in civil actions)
- Cunningham v. Goodyear Tire & Rubber Co., 104 Ohio App.3d 385 (9th Dist. 1995) (litigation expenses are not costs absent statutory authority)
- Centennial Ins. Co. v. Liberty Mut. Ins. Co., 69 Ohio St.2d 50 (Ohio 1982) (statutory authorization required to tax litigation expenses as costs)