Kross v. Ruff
2017 Ohio 4276
| Ohio Ct. App. | 2017Background
- The dispute concerns ownership of mineral rights under ~219 acres in Jefferson County originally severed by a 1924 Harrah deed that reserved one-half of oil and gas to the Harrah grantors.
- Surface rights passed to the Kross family; Appellees (Mark S. and Joe Kross) sought to reunite the minerals with the surface under Ohio’s Dormant Mineral Act (DMA).
- Appellees published notice of intent to declare the Harrah mineral interests abandoned on September 14, 2011; Appellants (Harrah heirs) filed affidavits of preservation on November 14, 2011 (the 61st day after notice, but the 60th day fell on a Sunday).
- A separate tax parcel for a Harrah mineral interest existed (created before 1964) and remained on the county records; a county tax-foreclosure lien was filed and later satisfied.
- Trial court granted summary judgment for Appellees based on the 1989 version of the DMA; on appeal the Seventh District reversed, applying the 2006 DMA and holding Appellants preserved their interests, remanding for damages if any.
Issues
| Issue | Plaintiff's Argument (Kross) | Defendant's Argument (Ruff et al.) | Held |
|---|---|---|---|
| Which DMA version governs claims filed after June 30, 2006? | 1989 DMA analysis controls; Appellants waived 2006-DMA argument below. | 2006 DMA governs because complaint filed in 2012; 1989 provisions are not self-executing after 2006. | 2006 DMA applies; trial court erred by relying on 1989 DMA. |
| Were the November 14, 2011 preservation affidavits timely and sufficient? | The affidavits were untimely (61st day) and fail to preserve mineral rights. | Filings were timely because the 60th day was a Sunday; affidavits complied with R.C. 5301.56(C) and Dodd. | Affidavits were timely and met statutory requirements; preservation succeeded under the 2006 DMA. |
| Does existence of a separately listed tax parcel preserve mineral rights? | Not argued at final briefing (trial court ruled against preservation by tax-parcel alone). | Tax parcel creation is a statutory savings event under R.C. 5301.56(B)(3)(f). | Moot: court found preservation via affidavits, so tax-parcel argument was unnecessary to decision. |
Key Cases Cited
- Dodd v. Croskey, 37 N.E.3d 147 (Ohio 2015) (preservation-affidavit filed within 60 days prevents abandonment)
- Grafton v. Ohio Edison Co., 671 N.E.2d 241 (Ohio 1996) (standards for appellate de novo review of summary judgment)
- Temple v. Wean United, Inc., 364 N.E.2d 267 (Ohio 1977) (summary judgment standard under Civ.R. 56)
- Dresher v. Burt, 662 N.E.2d 264 (Ohio 1996) (moving party’s summary-judgment burden and reciprocal burden of nonmoving party)
- Brewer v. Cleveland Bd. of Edn., 701 N.E.2d 1023 (Ohio App. 1998) (nonmoving party must produce evidence that a reasonable factfinder could rule in its favor)