RICHMOND MILLS, INC. et al., Plaintiffs-Appellees, v. MARGARET ALOE FERRARO et al., Defendants-Appellants.
Case No. 18 JE 0015
IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT JEFFERSON COUNTY
December 9, 2019
2019-Ohio-5249
Carol Ann Robb, Gene Donofrio, David A. D’Apolito, Judges.
Civil Appeal from the Court of Common Pleas of Jefferson County, Ohio, Case No. 16 CV 223
Affirmed in part; Reversed in part.
Atty. Matthew W. Onest, Atty. Gregory Watts, Atty. John Burnworth, Krugliak, Wilkins, Griffiths, & Dougherty Co., LPA., 4775 Munson Street, NW, PO Box 36963, Canton, Ohio 44718 for Plaintiffs-Appellees and
Atty. David K. Schaffner, Schaffner Law Offices, Co., LPA., 132 Fair Avenue, NW, New Philadelphia, Ohio 44663 for Defendants-Appellants.
Robb, J.
{¶1} Defendants-Appellants Margaret Aloe Ferraro et al. appeal the decision of the Jefferson County Common Pleas Court granting summary judgment for Plaintiffs-Appellees Richmond Mills, Inc. et al. The trial court found the Marketable Title Act (MTA) operated to extinguish a one-half mineral interest which was severed in 1947 and granted to four individuals (doing business as a partnership). First, Appellants argue the MTA cannot be applied to minerals due to the existence of the more specific Dormant Mineral Act (DMA). This argument fails as the MTA provides for extinguishment while the DMA provides for abandonment; these are two distinct statutory claims with different tests and do not irreconcilably conflict.
{¶2} Appellants alternatively contend their mineral interests could not be extinguished under the MTA due to the provision in
{¶3} For the following reasons, the trial court’s judgment is affirmed as to Linda Antonelli Nucci and Joyce DeLuca, whose mineral interests were properly declared extinguished under the MTA, and as to Gamma Land Company. The trial court’s judgment is reversed as to Margaret Aloe Ferraro and Gilda Ognibene, whose mineral interests were not extinguished under the MTA due to their continuous possession for over 40 years which continued through the time marketability was being determined.
{¶4} In two 1947 deeds, eight grantors conveyed “an undivided one-half interest in mineral rights, oil and gas, excepting and reserving the No. 8 vein of coal” to: Mary Grace Nucci, Anna DeLuca, Margaret Aloe, and Gilda Ognibene (described as “partners in trade, doing business under the name and style of Gamma Land Company, a partnership * * *“). (Vol. 231, P. 291; tract one with 71 acres1 and tract two with 125 acres and excepted acreage); (Vol. 231, P. 294; one tract with 202 acres). Nothing occurred in this chain of title until 2013.
{¶5} Through two quitclaim deeds recorded in 1950, those eight grantors conveyed their realty to Somerset Coal Company without mentioning the prior one-half mineral interest granted in 1947. (Vol. 264, P. 45; one tract with 202 acres); (Vol. 264, P. 47; tract one with 71 acres and tract two with 125 acres, with excepted acreage). The subsequent deeds in this chain of title also failed to mention the 1947 one-half mineral interest. For instance, Somerset Coal Company made a conveyance in 1975 to Anthony Mining Company, Inc. without reference to the 1947 mineral interest. (Vol. 532, P. 154; tract one with 71 acres and tract two with 21 acres, citing the two tracts in Vol. 264, P. 47; tract three with 189 acres, citing Vol. 264, P. 45). This property was then conveyed in 1990 to Richmond Mills, Inc. (Vol. 13, P. 991).
{¶6} On August 5, 2013, Richmond Mills, Inc. attempted to utilize the 2006 DMA to have the 1947 one-half mineral interest underlying the property it purchased in 1990 deemed abandoned by publishing notice of intent to declare a mineral interest abandoned. On October 3, 2013, notice of a claim to preserve the mineral interest was recorded by Margaret Aloe Ferraro, citing
{¶7} Under the 2006 DMA, these were timely preservation notices. See
{¶8} On May 2, 2016, Richmond Mills, Inc. filed suit against the four individuals who recorded claims to preserve and Gamma Land Company.2 The administrator of the estate of Margaret Aloe Ferraro, Francis T. Ferraro, was named as a defendant after the answer explained that Margaret died on November 18, 2014. The April 2017 amended complaint added PRC Legacy, LLC as a plaintiff after it purchased a portion of the subject property from Richmond Mills, Inc.
{¶9} The plaintiff sought declaratory judgment and quiet title, setting forth an extinguishment claim under the MTA, stating the mineral reservation was not in their 1950 root of title or any subsequent recorded documents (until the October 3, 2013 claim to preserve, which was long after the 40-year MTA period expired). Alternatively, the plaintiffs outlined an abandonment claim under the 1989 DMA, recognized the Supreme Court law holding the 1989 DMA can no longer be used after the enactment of the 2006 DMA, and set forth constitutional claims concerning rights lost under the 2006 DMA. The defendants filed a counterclaim seeking a declaratory judgment that they owned the one-half mineral interest under the MTA and the DMA and alleging tortious interference with a business relationship and frivolous conduct.
{¶10} Cross-motions for summary judgment were filed in 2018. The plaintiffs asked for summary judgment on their MTA claim stating the mineral interest was extinguished. They argued the defendants were not saved by
{¶11} First, the defendants countered that they preserved the mineral interest under the DMA and the MTA cannot be applied to a mineral interest as the DMA is more specific. Alternatively, the defendants argued the mineral interest was not extinguished under the MTA due to the notice-equivalency provision in
{¶12} On July 31, 2018, the trial court granted summary judgment in favor of the plaintiffs. The trial ruled the MTA can be applied to mineral interests and does not conflict with the DMA, stating the failed effort to reunite the surface with the minerals under the DMA did not affect the MTA claim. The trial court then concluded the MTA provision relied upon by the defendants required actual possession and found the defendants failed to show “an affirmative act or circumstance” suggesting they controlled the interest.
{¶13} The defendants filed a timely notice of appeal. Their brief originally set forth three assignments of error, but they later withdrew the third assignment of error (which claimed the trial court should have found the plaintiff’s constitutional DMA claim frivolous).
ASSIGNMENT OF ERROR ONE: MTA APPLIES TO MINERALS
{¶14} Appellants’ first assignment of error contends:
“The trial court erred when it held that the general provisions of the Marketable Title Act (
R.C. 5301.47 through5301.56 ) can be invoked by a surface owner to determine title to severed mineral interests as opposed to the specific provisions found inR.C. 5301.56 .”
{¶15} Appellants argue the DMA is the specific provision applicable to determining whether a mineral interest was abandoned and thus the more general MTA cannot be applied to mineral interests, citing this court’s pre-Corban cases Tribett and Swartz. Appellees counter by pointing out the MTA and the DMA provide separate mechanisms and do not conflict, citing this court’s Blackstone case. We recently confirmed the MTA can be applied to extinguish mineral interests, providing a full analysis of the issue. West v. Bode, 7th Dist. Monroe No. 18 MO 0017, 2019-Ohio-4092. We shall review the highlights of the analysis.
{¶16} When the MTA was enacted in 1961, it expressly excepted mineral interests from its application; however, a 1973 amendment eliminated the exception for mineral
{¶17} Pursuant to
{¶18} A marketable record title “operates to extinguish” all interests existing prior to the root of title, and thus, the record marketable title shall be held free and clear of all interests which depend upon events occurring prior to the effective date of the root of title.
{¶19} The DMA provides a method to have minerals “deemed abandoned” after 20 years in the absence of a savings event. As for the title transaction type of savings event, the DMA requires the qualifying title transaction to be “recorded in the office of the county recorder of the county in which the lands are located.”
{¶20} The 1989 DMA did not provide for automatic, self-executing abandonment of minerals upon the passing of 20 years without a savings event; in order to have the minerals “deemed abandoned” under the 1989 DMA, a lawsuit had to be filed by the surface owner prior to the effective date of the 2006 amendment. Corban, 149 Ohio St.3d 512. The 2006 DMA added provisions requiring service of notice of abandonment on the mineral holder and allowing the mineral holder to respond in a timely manner to preserve the mineral interest even after the passing of 20 years without a savings event. Dodd v. Croskey, 143 Ohio St.3d 293, 2015-Ohio-2362, 37 N.E.3d 147. The MTA contains no notice of extinguishment procedure, and a preserving notice under the MTA must be filed for record during the 40-year period after the root of title.
{¶21} “If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both.”
{¶22} When the Corban Court said the 2006 DMA “applies prospectively to all claims that mineral rights have been abandoned that are asserted after its effective date,” the Court was specifically answering a federal certified question about abandonment under the DMA. Corban, 149 Ohio St.3d 512 at ¶ 1, 33. A majority of justices in Corban found the statutory methods of abandonment and extinguishment to be distinct. Corban, 149 Ohio St.3d 512 at ¶ 17-18, 21 (plurality opinion distinguishing the “shall be deemed abandoned and vested” language in the DMA from the “operates to extinguish” and “are hereby declared null and void” language of the MTA), ¶ 53, 81 (Kennedy, J., concurring in judgment only on decision that the 1989 DMA could no longer be used and also emphasizing the difference between the use of the word “abandoned” in the DMA and the word “extinguished” in the MTA).
{¶23} “Consequently, the various statements in Corban explaining why the 2006 DMA (not the 1989 DMA) is the applicable statute must be read in context; the holdings all relate to claims of abandonment brought under the DMA.” West, 7th Dist. No. 18 MO 0017 at ¶ 37. “The MTA, on the other hand, deals with extinguishment.”
{¶24} The Ohio Supreme Court affirmed that judgment and found the one-half interest in an oil and gas royalty was not extinguished under the MTA due to a specific reference to it in the landowner’s root of title. Blackstone v. Moore, 155 Ohio St.3d 448,
Although the Supreme Court in Blackstone did not explicitly declare that the DMA was not the exclusive remedy, the Court specifically applied the MTA to a royalty interest to ascertain whether it was extinguished under the MTA’s 40-year period. And, they did so while pointing out a difference between the MTA and the DMA, without acknowledging the statement in the concurrence, and in the context of reviewing this court’s decision which held both could be used by a surface owner to obtain a mineral interest.
West v. Bode, 7th Dist. Monroe No. 18 MO 0017, 2019-Ohio-4092, ¶ 42.
{¶25} Reading Corban and Blackstone together, there is no conflict in applying both the MTA and the DMA to mineral interests:
The MTA involves extinguishment after 40 years resulting in a null and void interest.
R.C. 5301.50 . See alsoR.C. 5301.49(D) (no reviver by title transaction). The DMA involves an abandonment process which can be used after a 20-year absence of certain activity with notice requirements and the ability to file a post-notice-of-abandonment claim to preserve. * * * The fact that the MTA provides a different and separate procedure for the exercise of a different statutory right or remedy does not mean it irreconcilably conflicts with the DMA. They are co-extensive alternatives whose applicability in a particular case depends on the time passed and the nature of the items existing in the pertinent records. “[E]ach applies to a particular situation independent of the other.” Cook, 128 Ohio St.3d 120 at ¶ 46 (while finding two statutes did not irreconcilably conflict). If the claim is extinguishment under the MTA, then the 40-year provision and the tests applicable thereto apply; if the claim is abandonment under the DMA, those statutory procedures and 20-year test ofR.C. 5301.56 apply.
{¶26} Accordingly, the trial court did not err in holding a mineral interest can be extinguished under the MTA. This assignment of error is without merit.
ASSIGNMENT OF ERROR TWO: POSSESSION
{¶27} Appellants’ second assignment of error provides:
“The trial court erred when it held that
R.C. 5301.51(B) requires an affirmative act or circumstance to suggest control over the minerals.”
{¶28} The trial court concluded that the statutory provision relied on by Appellants to avoid extinguishment under the MTA required actual possession and found they failed to “point to an affirmative act or circumstance that would suggest any control” over the mineral interest sought to be preserved. The parties dispute whether the statutory provision saving a long-time owner from extinguishment requires actual, physical possession.
{¶29} The interpretation of the statute is a question of law to be reviewed de novo. See State v. Pountney, 152 Ohio St.3d 474, 2018-Ohio-22, 97 N.E.3d 478. “Statutes that are plain and unambiguous must be applied as written without further interpretation.” Proctor v. Kardassilaris, 115 Ohio St.3d 71, 2007-Ohio-4838, 873 N.E.2d 872, ¶ 12. Only if a statutory provision is ambiguous (with more than one reasonable meaning) may rules of construction be employed.
{¶30} Initially, division (A) of
If the same record owner of any possessory interest in land has been in possession of the land continuously for a period of forty years or more,
during which period no title transaction with respect to such interest appears of record in his chain of title, and no notice has been filed by him on his behalf as provided in division (A) of this section, and such possession continues to the time when marketability is being determined, the period of possession is equivalent to the filing of the notice immediately preceding the termination of the forty-year period described in division (A) of this section.
{¶31} Appellants claim there was continuous possession from the time of the 1947 grant through the date marketability was placed at issue (which they said was after Richmond Mills, Inc. published notice of abandonment in 2013). In support, they point to the fact that two of the original grantees in the 1947 deed were still alive in 2013 (and responded with claims to preserve which did not seek to revive an extinguished interest due to the continuous possession provision); they also claim the partnership still exists.
{¶32} Appellees point out that Appellants did not claim to be “in continuous physical and actual possession” of the mineral interest at issue. Appellees ask this court to reject a constructive possession theory, urging the statute requires “actual, physical possession of the property interest” for 40 or more continuous years. They refer to commentary by Simes and Taylor on the 1960 Model Title Standards providing an example of a person being in possession of land. Appellees say Appellants ignore the language “in possession” and their interpretation would render the entire MTA meaningless. See State ex rel. Carna v. Teays Valley Loc. Sch. Dist. Bd. of Edn., 131 Ohio St.3d 478, 2012-Ohio-1484, 967 N.E.2d 193, ¶ 18-19 (accord effect to every part of the statute and avoid a construction which renders a provision meaningless or inoperative). However, this case involves severed underground minerals; the notice-equivalency provision only applies to those in continuous possession who still possess it at the pertinent time (long-term owners); and the MTA would clearly still apply in a multitude of other cases.
{¶34} We note that Ohio did not adopt the Uniform Marketable Title Act. The UMTA attached to Appellee’s reply in support of summary judgment does not have a provision equivalent to
{¶35} To the contrary, the employment of the phrase “clearly observable by physical evidence of its use” in
{¶37} “Courts in Ohio have construed the requirement that the plaintiff be ‘in possession of real property’ to include constructive possession, i.e. the claim of superior title, in certain circumstances.” Bergholtz Coal Holding Co. v. Dunning, 11th Dist. Lake No. 2004-L-209, 2006-Ohio-3401, ¶ 39-40. See also Gill v. Fletcher, 74 Ohio St. 295, 306, 78 N.E. 433 (1906) (although insufficient for adverse possession, “constructive possession of the minerals” can occur “under color of deeds“). Therefore, where neither party had actual possession of the coal as it had not been mined, the court applied constructive possession in evaluating the possession element of a quiet title action. Bergholtz Coal Holding, 11th Dist. No. 2004-L-209 at ¶ 39-40. Constructive possession is associated with the recorded deed. See Haban v. Suburban Home Mtge. Co., 40 Ohio Law Abs. 78, 57 N.E.2d 97 (2d Dist.1943).
{¶38} Where statutes merely use the word possession, this court has not rejected constructive possession to fulfill this element. For instance, this court held possession can be actual or construction in construing a statute merely requiring possession to avoid a statute of limitations. Miller v. Cloud, 2016-Ohio-5390, 76 N.E.3d 297, ¶ 52, 61-62, 66
{¶39} Contrary to Appellees’ contention, the plain language of
{¶40} However, we cannot extend this rationale to the remaining two individuals claiming ownership of the portion of the mineral interest they indirectly inherited from the other two original grantees. As to the interests derived from the two mineral holders who died before marketability was being determined, statutory elements are missing. The notice-equivalency provision assists only “the same record owner” in possession “continuously for a period of forty years of more” if the “possession continues to the time when marketability is being determined” (i.e. qualifying ownership). Linda Antonelli Nucci and Joyce DeLuca do not claim to be the record owner of the subject mineral interest,
{¶41} Linda Antonelli Nucci and Joyce DeLuca do not dispute that the record owner from whom they received their interest died before marketability was being determined. Contrary to their suggestion, the fact that two other grantees remained in possession so as to satisfy
{¶42} The fact that the one-half mineral interest was undivided and four grantees received the interest as tenants in common in the same deed does not mean a deceased owner’s heirs can use the qualifying ownership of one of the other owners to satisfy division (B) of
{¶44} Appellants’ brief notation that the partnership was still in existence does not alter this conclusion. The mineral interest was conveyed in 1947 to four individuals (doing business as a partnership). Linda Antonelli Nucci and Joyce DeLuca claim to have received their mineral interest as an inheritance from the sons of the two of the original grantees, not through the partnership. Under the law applicable before more recent statutes were enacted: “A partnership is an aggregate of individuals and does not constitute a separate legal entity.” Arpadi v. First MSP Corp., 68 Ohio St.3d 453, 628 N.E.2d 1335 (1994). See also Weddle v. Hayes, 7th Dist. Belmont No. 96-BA-44, 1997 WL 567964, *8 (Sep. 5, 1997) (concluding the partners were insured under the policy individuals even where it was issued in name of the partnership).4
{¶45} For the foregoing reasons, the trial court’s judgment is affirmed as to Linda Antonelli Nucci and Joyce DeLuca, whose mineral interests were extinguished under the MTA, and as to Gamma Land Company. The trial court’s judgment is reversed as to Margaret Aloe Ferraro and Gilda Ognibene, whose mineral interests were not extinguished under the MTA due to their continuous possession for over 40 years which continued through the time marketability was being determined.
Donofrio, J., concurs.
D’Apolito, J., dissents with dissenting opinion.
RICHMOND MILLS, INC. et al., Plaintiffs-Appellees, v. MARGARET ALOE FERRARO et al., Defendants-Appellants.
Case No. 18 JE 0015
IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT JEFFERSON COUNTY
December 9, 2019
D’Apolito, J., dissenting opinion.
{¶46} For the following reasons, I respectfully dissent. While I agree that the record establishes that only Margaret Aloe Ferraro and Gilda Ognibene have fulfilled the statutory requirements in
{¶47} The majority recognizes that “tenancy in common” means that two or more people hold an interest undivided without entitlement to an exclusive part, but with entitlement to occupy the whole in common with the others. To the extent that Ferraro and Ognibene constructively possessed the one-half mineral interest for the statutorily-defined time period, undivided with entitlement to occupy the whole in common, first with the other two original grantees, then with their sons, and finally with their son’s wives, I would hold that the entire one-half mineral interest was preserved by operation of
A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.