text:
    Gudrun MCAULEY, Plaintiff-Appellant, v. Donald L. BROOKER et al., Defendants-Appellees.
    NO. 17 NO 0445
    Court of Appeals of Ohio, Seventh District, Noble County.
    Dated: December 18, 2017
    Atty. Daniel P. Corcoran, Atty. Kristopher O. Justice, Theisen Brock, 424 Second Street, Marietta, Ohio 45750, For Plaintiff-Appellant.
    Atty. Craig J. Wilson, C.J. Wilson Law, LLC, 502 S. High St., Suite 200, Columbus, Ohio 43215, Atty. Thomas D. White, Atty. Matthew A. Kearney, White Law Office, Co., 209 N. Washington St., Millersburg, Ohio 44654, Atty. J. Emens, Emens & Wolper Law Firm, One Easton Oval, Suite 550, Columbus, Ohio 43219, For Defendants-Appellees.
   JUDGES: Hon. Carol Ann Robb, Hon. Cheryl L. Waite, Hon. Mary DeGenaro

OPINION

ROBB, P.J.

{¶ 1} Plaintiff-Appellant Gudrun Ann McAuley appeals the decision of Noble County Common Pleas Court granting summary judgment in favor of Defendants-Appellees Donald Brooker, Roger Gantz, Shirley Gantz, Sidney Karin, Jack Morris, and Catherine Morris. There are two issues raised in this appeal.

{¶ 2} The first issue is whether the reservation in the 1961 deed for oil, gas, and mineral interest owned by Cora retained the interest for Cora's heirs, or was that interest conveyed with the surface estate in 1961 to Appellant's predecessor in title?

{¶ 3} The second issue is whether the mineral interest was abandoned and vested under the 2006 Ohio Dormant Mineral Act. Specifically, Appellant contends the filing of a claim to preserve under R.C. 5301.56(H) does not prevent the conclusive presumption of abandonment under R.C. 5301.56(B).

{¶ 4} As to the first issue, we conclude Cora Atkinson's estate reserved the mineral interest. The argument raised in the second issue is the same argument raised and found meritless in Bayes v. Sylvester , 7th Dist. No. 13 MO 0020, 2017-Ohio-4033, ¶ 24-26, 2017 WL 2333196. Thus, on the basis of that case, the second issue also has no merit. Accordingly, the trial court's grant of summary judgment is affirmed.

Statement of the Facts and Case

{¶ 5} Appellant acquired a tract of land in Jefferson Township, Noble County, Ohio in 1998.

{¶ 6} It is undisputed that a portion of the mineral estate underlying this property had been sold to George Rice in 1874; the 1874 deed stated Isaac and Hannah Atkinson sold a portion of the "petroleum, coal, rock or leanbon [?] oil and all minerals and volatile substances" to George Rice (Rice mineral interest). 1874 Deed.

{¶ 7} It is also undisputed that Isaac W. Atkinson owned the surface and any minerals that had not been sold to George Rice. In February 1937, Isaac W. Atkinson transferred the surface estate to his wife Cora Atkinson and he retained the mineral estate that had not previously been sold to Rice. The 1937 deed referenced the 1874 mineral conveyance to Rice. The specific language used in the 1937 deed was:

EXCEPT a certain conveyance by Isaac Atkinson and Hannah Atkinson to George Rice of about 37 acres, part of said section 8, for a description of said tract, reference is hereby had to records of Noble County, Ohio, of all the oil and mineral underlying said tract described in said conveyance above referred to. Said premises of 63 acres more or less, being parts of the same premised deeded to William L. Atkinson by Isaac Atkinson and his wife, Hannah Atkinson and Robert F. Lorckson [?]. RESERVING however from the operation of this deed the undivided interest of the oil, gas, coal and other minerals in and under this tract of land as heretofore described together with the right to operate and produce the same, except the Rice conveyance of 37 acres, hereinbefore set out.

1937 Deed.

{¶ 8} It is undisputed Isaac W. Atkinson died intestate in 1959 and Cora Atkinson inherited his mineral interest under Ohio's laws of intestate succession. Cora Atkinson died in 1960. Her will devised an equal 1/3 interest to Margaret Morris, Donald L. Booker, and Smith Ballentine. Appellees are the devisees and/or heirs of the devisees.

{¶ 9} In 1961, Cora Atkinson's estate, through the executor L.C. Young, sold the real property to Delmar G. Lewis and Betty M. Lewis, Appellant's predecessors in title. The 1961 deed contains the following language:

RESERVING from the operation of this deed the undivided interest in the oil, gas, coal and other minerals underlying said premises and reserved in a deed from Isaac Atkinson and Hannah Atkinson to George Rice and further reserved in a deed from Isaac W. Atkinson to Cora Atkinson, in Volume 89 at Page 576, Deed Record of Noble County, Ohio.

1961 Executor's Deed.

{¶ 10} Appellant attempted to serve a notice of abandonment on Appellee Donald L. Booker by certified mail on October 16, 2013. After certified mail failed, a notice of abandonment was published on October 28, 2013 in a newspaper of general circulation in Noble County. The published notice was directed to the heirs and assigns of Cora Atkinson. On December 17, 2013 Appellant filed an "Affidavit of Abandonment" in the Noble County Recorder's Office. A notice of preservation was filed by Appellee Sidney Karin on December 20, 2013 preserving Appellees alleged interest.

{¶ 11} In September 2014, Appellant filed a complaint for quiet title in Noble County Common Pleas Court. Appellant sought to have the minerals underlying her property deemed abandoned and reunited with the surface. Appellees, along with others, were listed as defendants to this action.

{¶ 12} Following discovery, the parties filed their respective summary judgment motions. 11/15/16 Defendants' Motion for Summary Judgment; 12/16/16 Plaintiff's Motion for Summary Judgment. Appellees argued the 1961 reservation reserved the Atkinson mineral interest (the mineral interest Cora inherited from Isaac W. Atkinson). They further argued the notice of preservation preserved their interest. Appellant argued the 1961 reservation did not reserve the Atkinson mineral interest, but rather was a notification of the Rice mineral interest that was conveyed to Rice in the 1874 deed and restated in the 1937 deed. She alternatively argued the notice of preservation did not preserve the interest, because the filing of a claim to preserve under R.C. 5301.56(H) does not prevent the conclusive presumption of abandonment under R.C. 5301.56(B).

{¶ 13} The trial court granted Appellees' summary judgment motion and denied Appellant's summary judgment motion. 2/22/17 J.E. The trial court stated the Atkinson mineral interest was reserved by Cora's estate under the 1961 deed. It further held the notice to preserve preserved the mineral interests.

{¶ 14} Appellant timely appealed the trial court's decision.

Assignment of Error

"The trial court erred in granting Defendants-Appellees' motion for summary judgment and denying Appellant's motion for summary judgment."

{¶ 15} An appellate court reviews the granting of summary judgment de novo; we apply the same test as the trial court. Comer v. Risko , 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. A trial court may grant summary judgment only when (1) no genuine issue of material fact exists; (2) the moving party is entitled to judgment as a matter of law; and (3) the evidence can only produce a finding that is contrary to the non-moving party. Civ.R. 56(C).

{¶ 16} This assignment of error is divided into two parts. The first addresses the 1961 deed language. The second addresses the 2006 ODMA and whether the filing of a claim to preserve under R.C. 5301.56(H) prevents the conclusive presumption of abandonment under R.C. 5301.56(B).

1961 Deed

{¶ 17} In the case of contracts, deeds, or other written instruments, the construction of the writing is a matter of law, which is reviewed de novo. Long Beach Assn., Inc. v. Jones , 82 Ohio St.3d 574, 576, 697 N.E.2d 208 (1998). Under a de novo review, an appellate court may interpret the language of the contract substituting its interpretation for that of the trial court. Witte v. Protek Ltd. , 5th Dist. No. 2009CA00230, 2010-Ohio-1193, ¶ 6, 2010 WL 1076070, citing Children's Medical Center v. Ward , 87 Ohio App.3d 504, 622 N.E.2d 692 (2d Dist.1993).

{¶ 18} Written instruments "are to be interpreted so as to carry out the intent of the parties, as that intent is evidenced by the contractual language." Skivolocki v. East Ohio Gas Co. , 38 Ohio St.2d 244, 313 N.E.2d 374 (1974), paragraph one of the syllabus. "The principles of deed construction dictate that a court presumes that a deed expresses the intentions of the grantor and grantee at the time of execution. * * * A court cannot interpret the parties' intent in a manner contrary to the clear, unambiguous language of the deed." American Energy Corp. v. Datkuliak , 174 Ohio App.3d 398, 2007-Ohio-7199, ¶ 50, 882 N.E.2d 463. If the terms of the written instrument are clear and unambiguous, courts must give the words their plain and ordinary meaning and may not create a new contract by finding the parties intended something not set out in the contract. Alexander v. Buckeye Pipe Line , 53 Ohio St.2d 241, 246, 374 N.E.2d 146 (1978).

{¶ 19} However, when the plain language of the written instruments is ambiguous, then a court can look to parol evidence to resolve the ambiguity and ascertain the parties' intent. Illinois Controls, Inc. v. Langham , 70 Ohio St.3d 512, 521, 639 N.E.2d 771 (1994) ; City of Steubenville v. Jefferson Cty. , 7th Dist. No. 07JE51, 2008-Ohio-5053, ¶ 22, 2008 WL 4416062. This is a primary rule of contract construction. Envision Waste Services, LLC v. Cty. of Medina , 9th Dist. Nos. 15CA0104-M and 15CA0105M, 2017-Ohio-351, ¶15, 2017 WL 422367, quoting Michael A. Gerard, Inc. v. Haffke , 8th Dist. No. 98488, 2013-Ohio-168, ¶ 14, 2013 WL 267296.

{¶ 20} Terms in a contract are ambiguous if their meaning cannot be determined from reading the entire contract, or if they are reasonably susceptible to multiple interpretations. First Natl. Bank of Pennsylvania v. Nader , 9th Dist. No. 16CA0004-M, 2017-Ohio-1482, ¶ 25, 2017 WL 1499209. Parol evidence is used only to interpret the terms, and not to contradict the terms. Id. , citing Blosser v. Enderlin , 113 Ohio St. 121, 134, 148 N.E. 393 (1925). "The decision as to whether a contract is ambiguous and thus requires extrinsic evidence to ascertain its meaning is one of law." Nader , quoting Ohio Historical Soc. v. Gen. Maintenance and Eng. Co. , 65 Ohio App.3d 139, 146, 583 N.E.2d 340 (10th Dist.1989).

{¶ 21} If parol evidence fails to clarify the meaning of the contract, then the secondary rule of contract construction can be used to determine the party's intent. Envision Waste Services. The secondary rule requires ambiguities to be construed against the drafter.

Cadle v. D'Amico, 2016-Ohio-4747, 66 N.E.3d 1184, ¶ 33 (7th Dist.) (Construing a contract against the drafter is a secondary rule of contract construction, and is applicable when the primary rules of contract construction fail to clarify the meaning of the contract.). "Where that ambiguity is coupled with a material issue of fact supported by proper evidentiary materials, summary judgment is improper." Envision Waste Services, quoting Town & Country Co-op, Inc. v. Sabol Farms, Inc. , 9th Dist. No. 11CA0014, 2012-Ohio-4874, ¶ 15, 2012 WL 5193400.

{¶ 22} Thus, our analysis begins with the plain language of the 1961 deed. This deed states:

RESERVING from the operation of this deed the undivided interest in the oil, gas, coal and other minerals underlying said premises and reserved in a deed from Isaac Atkinson and Hannah Atkinson to George Rice and further reserved in a deed from Isaac W. Atkinson to Cora Atkinson, in Volume 89 at Page 576, Deed Record of Noble County, Ohio.

1961 Executor's Deed.

{¶ 23} Appellant contends the clear language of this clause notified the purchasers of the 1874 Rice mineral interest, but it did not reserve the Atkinson mineral interest. She acknowledges the clause refers to two deeds, the 1874 deed where Isaac and Hannah Atkinson conveyed the mineral interest to George Rice and the 1937 deed between Isaac W. Atkinson and Cora Atkinson. She argues the language used in the clause refers to one singular interest-the Rice mineral interest. Her argument is based on the words "the interest"; "interest" is used in the singular and "the" is a word of limitation as opposed to "a" or "an," which are indefinite or generalizing. She also contends when the clause states "and further reserved" in reference to the 1937 deed (where Isaac W. Atkinson reserved the minerals and sold the surface to his wife Cora) the clause was only further referring to the Rice mineral interest. It was not creating or identifying an additional reservation. Therefore, according to her, the estate did not retain Cora's mineral interest; the 1961 deed conveyed all of Cora's interest, which was the surface estate that she acquired in 1937 and the mineral interest she acquired from Isaac W. Atkinson when he died in 1959 without a will.

{¶ 24} Appellant also cites the doctrine of merger. She contends when Cora inherited Isaac's mineral estate through intestate succession, the surface and mineral estate merged. Appellant insinuates if Cora or her estate wanted to reserve the minerals, they were required to make a separate reservation and not rely on Isaac's reservation because those estates merged.

{¶ 25} Appellees argue the plain language of the 1961 deed reserved the Atkinson mineral interest. Appellees argue the clause has two sections. The first section is the general reservation-"RESERVING from the operation of this deed the undivided interest in the oil, gas, coal and other minerals underlying said premises." Appellees contend this section indicated all the oil, gas, and minerals underlying the premises were excepted and reserved from the conveyance. The second section is the supplemental language describing what the general reservation encompassed-"reserved in a deed from Isaac Atkinson and Hannah Atkinson to George Rice and further reserved in a deed from Isaac W. Atkinson to Cora Atkinson, in Volume 89 at Page 576, Deed Record of Noble County, Ohio." Thus, according to Appellees the reservation is composed of the 1874 Rice mineral interest and the 1937 Atkinson mineral interest.

{¶ 26} Appellees contend their reading of the clause is correct for two reasons. First, it gives meaning to the first part of the clause; reading the clause to mean only the Rice mineral interest was reserved does not give meaning to the language "RESERVING from the operation of this deed the undivided interest in the oil, gas, coal and other minerals underlying said premises." Second, reading the clause in the manner proposed by Appellant would give no meaning to the reference to the 1937 deed.

{¶ 27} In response to Appellant's merger argument, Appellees contend when Cora inherited the mineral estate from Isaac W. Atkinson, the surface and the mineral estate did not merge. They assert the clear language of the 1961 deed indicates there was no intention for the estates to merge.

{¶ 28} The trial court found the Atkinson mineral interest was reserved by Cora's estate in the 1961 deed. As stated above, we review the clause de novo and thus, we do not give deference to the trial court's interpretation.

{¶ 29} The clause in the 1961 deed states:

RESERVING from the operation of this deed the undivided interest in the oil, gas, coal and other minerals underlying said premises and reserved in a deed from Isaac Atkinson and Hannah Atkinson to George Rice and further reserved in a deed from Isaac W. Atkinson to Cora Atkinson, in Volume 89 at Page 576, Deed Record of Noble County, Ohio.

1961 Executor's Deed.

{¶ 30} This clause can be divided into three parts. The first part is a reference to the entire mineral estate. The language following the first part modifies it and defines what the mineral estate encompasses. These two modifiers are descriptions of two separate mineral severances that make up the entire mineral estate.

{¶ 31} The first part of the clause states, "RESERVING from the operation of this deed the undivided interest in the oil, gas, coal and other minerals underlying said premises." This is a reference to the entire mineral estate underlying the surface. The plain language of this phrase indicates this deed is not conveying any mineral interest.

{¶ 32} This language is nearly identical to the language used in the 1937 deed from Isaac W. Atkinson to Cora. As aforementioned, in 1937 Isaac W. Atkinson conveyed the surface to Cora and excepted the minerals for himself. The 1937 deed provided notice of the 1874 Atkinson to Rice mineral conveyance; the language of the deed "excepted" the Rice mineral interest from the conveyance. Following that exception, the deed stated, "RESERVING however from the operation of this deed the undivided interest of the oil, gas, coal and other minerals in and under this tract of land as heretofore described together with the right to operate and produce the same, except the Rice conveyance of 37 acres, hereinbefore set out." This language undisputedly reserved the remaining mineral interest, the Atkinson mineral interest, and provided notice of the Rice mineral interest. In other words, the deed conveyed no mineral interest. Use of this same language in the 1961 deed is an indication that no mineral interest was being conveyed.

{¶ 33} The second part of the clause is "and reserved in a deed from Isaac Atkinson and Hannah Atkinson to George Rice." The deed referred to in this clause is the 1874 deed. In 1874 Isaac Atkinson and Hannah Atkinson sold George Rice all the minerals underlying a defined 37 acres. Thus, the 1874 conveyance was a mineral conveyance and the 1874 deed was a mineral deed. In that mineral deed, Isaac and Hannah did not reserve any minerals to the 37 acres described in the deed. Also, George Rice did not reserve any minerals, rather he purchased them. Thus, the use of the word "reserved" in this clause is inaccurate because neither Isaac and Hannah nor George reserved minerals underlying the 37 acres in the 1874 deed. Therefore, either this clause means nothing because it is an inaccurate description of what transpired in 1874, or it is an inartfully worded notice of the Rice mineral interest that George Rice purchased in 1874 and that was memorialized in the 1874 mineral deed. Regardless, no one disputes the existence of the Rice mineral interest.

{¶ 34} The third part of the clause is, "and further reserved in a deed from Isaac W. Atkinson to Cora Atkinson, in Volume 89 at Page 576, Deed Record of Noble County, Ohio." The deed referenced is the 1937 deed. Appellant argues the language "and further reserved" means this is a further reference to the Rice mineral interest and is not a reference and reservation of the Atkinson mineral interest. We disagree. This phrase cannot be a mere reference to the Rice mineral interest because, in simple terms, the 1937 deed had nothing to do with George Rice and his mineral interest. Nothing in the 1937 transaction affected or could have affected the Rice mineral interest because the interest was already established in 1874 and George Rice was a stranger to the 1937 surface conveyance to Cora and mineral reservation by Isaac W. Atkinson. Thus, the Rice mineral interest was not "further" reserved in the 1937 deed; it was not "further" anything in that deed. The only reservation that occurred in the 1937 deed was Isaac's reservation of his mineral interest underlying the premises, which is the Atkinson mineral interest. Thus, the use of the word "further" cannot be a reference to the Rice mineral interest. It is, however, a reference to the Atkinson mineral reservation, which was created by that 1937 deed.

{¶ 35} Therefore, when the clause is read as a whole it indicates all the minerals underlying the property are excluded from the operation of the 1961 deed with those mineral interests composed of the Rice mineral interest and the Atkinson mineral interest; the reference to the 1874 deed is notice of the Rice mineral deed, and the reference to the 1937 deed is the Atkinson mineral reservation and notice of the prior Rice mineral interest. The language used also indicates Cora's estate is reserving any minerals Cora owned at the time of her death, which undisputedly are the Atkinson mineral interest, and any minerals not reserved or previously conveyed.

{¶ 36} Appellant argues the doctrine of merger applies and thus, when she inherited the minerals from Isaac W. Atkinson through intestate succession, the surface estate and the mineral estate merger. Therefore, in order for Cora's estate to reserve the Atkinson mineral interest the estate was required to make a separate reservation and not rely on Isaac W. Atkinson's reservation.

{¶ 37} Recently, we have explained the doctrine of merger:

Pursuant to the doctrine of merger, a lesser estate will be absorbed into a greater estate when they meet and coincide in the same person. Gallucci v. Freshour , 4th Dist. No. 96CA18, 1997 WL 548730, *3 (Sept. 8, 1997). To constitute a merger, the two estates must be in one and the same person, at one and the same time, and in one and the same right. Colopy v. Wilson , 48 Ohio App.3d 148, 149, 548 N.E.2d 1322 (5th Dist.1989), citing 41 Ohio Jurisprudence 3d (1983) 547, Estates, Powers, and Restraints on Alienation, Section 135. The question of whether there will be a merger of a lesser and greater estate under circumstances which might permit a merger is a matter of intention and substantial justice. Id. at 150 [548 N.E.2d 1322].

Headley v. Ackerman , 7th Dist. No. 16 MO 10, 2017-Ohio-8030, ¶ 32, 2017 WL 4351411 (holding merger was applicable).

{¶ 38} Appellant's argument fails because either the doctrine of merger is irrelevant, or the 1961 deed demonstrates there was no intent to merge the surface and mineral estates. As was stated above, the language of the reservation clause indicates all minerals are excluded from the operation of the deed and the estate was reserving any minerals Cora owned and any minerals not reserved or previously conveyed. Thus, the plain language of the document shows intent to reserve the minerals regardless of merger.

{¶ 39} The language of the reservation clause additionally demonstrates a clear intent for the estates to remain severed. As previously explained, Isaac W. Atkinson originally owned the surface and unconveyed minerals as one estate. In 1937, Isaac W. Atkinson severed the remaining mineral estate from the surface, retained this remaining mineral estate, and conveyed the surface estate to his wife Cora. When he died in October 1959, the mineral estate passed through intestate succession to Cora. Cora died in November 1960. Prior to Cora and Isaac's deaths, the estate remained separate for over 20 years; the record contains no indication the parties reunited the estates. Cora and Isaac died within 13 months of each other. The only document in the record to show Cora's intent regarding the estates is the 1961 deed. The 1961 deed in the first part of the reservation clause uses the same language used in the 1937 deed, and the 1961 deed in the third part of the reservation clause specifically refers to the reservation in the 1937 deed. As explained above the only reservation in the 1937 deed was Isaac W. Atkinson reserving the unconveyed mineral interest-the Atkinson mineral interest. Therefore, the language used in the 1961 deed, specifically mimicking the language of the 1937 deed and referencing the 1937 deed, shows intent for the surface and mineral estates to remain separate.

{¶ 40} Consequently, for the above stated reasons we conclude the clear and unambiguous language in the 1961 deed indicates intent for Cora's estate to reserve the Atkinson mineral interest. The 1961 conveyance was only for the surface; the Atkinson mineral interest was excluded from the conveyance.

B. 2006 ODMA

{¶ 41} The record undisputedly indicates the following. In 2013 Appellant published a notice of abandonment in accordance with the 2006 ODMA. Appellant also filed an affidavit of abandonment in the Noble County Recorder's Office on December 13, 2013. Appellees filed a notice of preservation of mineral interest in accordance with R.C. 5301.56(H)(1) on December 20, 2013.

{¶ 42} Appellant agrees the notice to preserve prevented the Atkinson mineral interest from being abandoned under R.C. 5301.56(H)(2). However, she contends the Atkinson mineral interest is subject to a conclusive presumption of abandonment under R.C. 5301.56(B). According to her, a claim to preserve under division (H)(1) is not a savings event under division (B).

{¶ 43} This same argument was presented to this court in Bayes . Bayes v. Sylvester , 7th Dist. No. 13 MO 0020, 2017-Ohio-4033. In Bayes , we explained the determination of whether the claim to preserve the minerals was governed by the Ohio Supreme Court's decision in Dodd v. Croskey and we set forth the holdings made by the Dodd Court. Bayes , 2017-Ohio-4033 at ¶ 18-25, citing Dodd v. Croskey , 143 Ohio St.3d 293, 2015-Ohio-2362, 37 N.E.3d 147. We then acknowledged the argument presented was the same argument presented and rejected by the Ohio Supreme Court in a motion to reconsider its decision in Farnsworth v. Burkhart , 150 Ohio St.3d 345, 2016-Ohio-5816, 81 N.E.3d 1223 :

In a motion for reconsideration to the Ohio Supreme Court, the Farnsworth appellants made the identical arguments appellants now make to this court. Specifically, the Farnsworth appellants argued that a claim to preserve filed pursuant to R.C. 5301.56(H)(1)(a) is not an occurrence under R.C. 5301.56(B) that prevents an abandonment because such a claim must be filed within the 20 years preceding the notice of abandonment. See Motion for Reconsideration of Appellants, Virgil Farnsworth and Theresa Farnsworth. The Ohio Supreme Court denied the motion for reconsideration. Farnsworth v. Burkhart , 147 Ohio St.3d 1439, 2016-Ohio-7677, 63 N.E.3d 157.
This case is controlled by the Ohio Supreme Court's decision in Dodd . Here, appellants published a notice of abandonment on February 2, 2012. Thus, appellees had 60 days from that date to file either an affidavit or a claim of preservation. They timely filed a claim of preservation on March 23, 2012. By filing the claim of preservation within 60 days of publication of notice, appellees halted the abandonment process instituted by appellants. Thus, the trial court properly granted summary judgment in appellees' favor and found that appellees own the Royalty Interest at issue.

Id. at ¶ 24-25.

{¶ 44} On the basis of that decision, Appellant's argument fails. Appellees preserved their minerals within 60 days of the published notice of abandonment; the notice was published on October 28, 2013 and the preservation of mineral interest was filed on December 20, 2013.

{¶ 45} For those reasons, Appellant's argument regarding the 2006 ODMA lacks merit.

Conclusion

{¶ 46} For the foregoing reasons, we hold the clause at issue is unambiguous and excluded the mineral interest from the conveyance. Accordingly, there is no merit with the first argument presented. On the basis of Bayes and Dodd , the second argument also lacks merit. The trial court's grant of summary judgment for Appellees is hereby affirmed.

Waite, J., dissents; see dissenting opinion.

DeGenaro, J., concurs.

Waite, J., dissenting opinion.

{¶ 47} I join in the majority's opinion that Appellees preserved their interests pursuant to the 2006 DMA, however, I cannot agree with the majority's holding that the 1961 deed adequately reserved Atkinson's interest in the minerals and must dissent for the following reasons.

{¶ 48} In relevant part, the reservation clause at issue in this appeal states:

{¶ 49} RESERVING from the operation of this deed the undivided interest in the oil, gas, coal and other minerals underlying said premises and reserved in a deed from Isaac Atkinson and Hannah Atkinson to George Rice and further reserved in a deed from Isaac W. Atkinson to Cora Atkinson, in Volume 89 at Page 576, Deed Record of Noble County, Ohio. (1961 Executor's Deed.)

{¶ 50} The majority opinion divides this clause into three parts: (1) the reference to the entire mineral estate; (2) reference to the Rice interest; and (3) reference to the Atkinson interest. However, a plain reading of the clause reveals only two parts: the reference to the entire mineral estate and the reference to the Rice interest.

{¶ 51} "A court must read words and phrases in context and construe them in accordance with rules of grammar and common usage." Steiner v. Morrison , 7th Dist. No. 14 MA 0114, 2016-Ohio-4798, 68 N.E.3d 151, citing W. Jefferson v. Cammelleri , 12th Dist. No. CA2014-04-012, 2015-Ohio-2463, ¶ 14, 2015 WL 3824456 ; State ex rel. Choices for S.W. City Schools v. Anthony , 108 Ohio St.3d 1, 2005-Ohio-5362, 840 N.E.2d 582, ¶ 40. "According to ordinary grammar rules, items in a series are normally separated by commas." Steiner at ¶ 22, citing W. Jefferson at ¶ 15 ; Chicago Manual of Style 312 (16th Ed.2010). When phrases are separated by a comma, the words within the commas are one item. Id.

{¶ 52} Here, there is no comma separating the Rice reference from the supposed Atkinson reference. Reading the clause in accordance with the rules of grammar and common usage, the lack of a comma indicates that the clause is referring to one interest, the Rice interest, which can be found not only within the deed from the Atkinsons to Rice but also in the deed from Isaac W. Atkinson to Cora Atkinson. There is one reservation contained in two sources. This is plain and unambiguous based on both the language used within the clause and the lack of punctuation.

{¶ 53} For this reason, I dissent from the majority Opinion and I would reverse the judgment of the trial court.


source: Caselaw Access Project

author: BRUNNER, J. LUPER SCHUSTER, J., dissenting.

license: Public Domain

text:
    Ann ROTY, et al., Plaintiffs-Appellants, v. BATTELLE MEMORIAL INSTITUTE, et al., Defendants-Appellees.
    No. 16AP-266
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on December 19, 2017
    On brief: Law Offices of Russell A. Kelm, Russell A. Kelm, and Colleen Koehler, Columbus, for appellants. Argued: Russell A. Kelm.
    On brief: Ice Miller, LLP, James E. Davidson, Catherine L. Strauss, Columbus, for appellees. Argued: James E. Davidson.
    DECISION
   BRUNNER, J.

{¶ 1} Plaintiffs-appellants, Ann Roty and Mary Neff (collectively, "Roty and Neff"), appeal from a judgment of the Franklin County Court of Common Pleas entered on April 5, 2016 granting a motion for summary judgment filed by defendants-appellees, Battelle Memorial Institute, Jeffrey Perko, Jane Cozzarelli, Jeffrey Caspers, Gwendolyn Von Holten, Staci Palmer, and David Evans (collectively, "Battelle"). Because we find that the trial court erred in concluding that company-wide statistics showing the ages of employees retained and terminated during a 2013 reduction in force were so irrelevant as to not even be discoverable, we sustain Roty and Neff's first assignment of error. Because the resolution of that assignment of error will likely affect the summary judgment record, we find that the remaining assignments of error (all of which pertain to summary judgment) are rendered moot. We reverse and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

{¶ 2} On March 7, 2014, Roty and Neff filed suit against Battelle and certain supervisor and management employees of Battelle alleging age discrimination stemming from both Roty's and Neff's terminations during a 2013 reduction in force at Battelle. (Mar. 7, 2014 Compl.) One of the claims made in the complaint was that the reduction in force was of disparate impact for workers over age 40, since they were allegedly disproportionately represented in the firings. Id. at ¶ 14. During the course of discovery, Roty and Neff moved the trial court for an order compelling Batelle "to produce discovery requested by plaintiffs relating to the statistics of the ages and positions of those included and not included in a reduction in force conducted at Battelle in August and September of 2013." (June 12, 2014 Mot. to Compel at 1.) The trial court referred all discovery disputes to a magistrate.

{¶ 3} In December 2014, the trial court held an evidentiary hearing in another pending case also involving discrimination claims against Battelle in connection with its same 2013 reduction in force. See Wasserstrom v. Battelle Mem. Inst. , Franklin C.P. No. 13CV-13871 (Aug. 14, 2015). The trial court permitted the parties in both cases to jointly present evidence in support of their respective positions on the statistical data discovery question at issue on this appeal.

{¶ 4} In Roty's and Neff's case, in a decision issued on February 23, 2015, the magistrate quoted from a decision issued by the judge in the Wasserstrom case:

This matter came before the Court on December 4, 2014, for an evidentiary hearing regarding the scope of discovery. The Court has considered all of the evidence and arguments presented by counsel.
The evidence presented indicates that each termination decision was made at the business unit level. Accordingly, at most, Plaintiff is entitled to the dates of birth and position titles for each Human Resources employee included in the August and September 2013 RIF in which Defendant Thomas D. Snowberger was the principal decision maker. Defendants submit that this information has already been produced.
Accordingly, Plaintiff's request for any further data is hereby DENIED.

(Feb. 23, 2015 Mag. Decision at 4, quoting Wasserstrom v. Battelle Mem. Inst. , Franklin C.P. No. 13CV-13871 (Jan. 28, 2015 Entry).) Relying upon the Wasserstrom decision and the evidence adduced during the December 4, 2014 joint hearing, the magistrate concluded that the termination decisions in this case were also made at the business unit level. (Feb. 23, 2015 Mag. Decision at 4-5.) On that basis, the magistrate found that Roty and Neff were only entitled to discovery regarding the birthdates and position titles for each employee included in the August and September 2013 reduction in force in their single business unit. Id. at 5. The magistrate therefore denied Roty and Neff's request to compel Battelle to provide statistics reaching across all of Battelle's business units. Id. Because the order only authorized discovery for those "included" in the reduction in force, it could have been understood two ways. First, it could have authorized discovery for each person who fell within the ambit of the reduction in force plan, regardless of whether the person actually lost his or her job. Second, and more restrictively, it could also have applied only to those who were "included" in the reduction in force in the sense that they were terminated as part of the reduction in force. Id.

{¶ 5} On March 9, 2015, Roty and Neff filed timely objections to the magistrate's decision. (Mar. 9, 2015 Objs.) Roty and Neff argued that the case law supports the need for statistical evidence of the nature they sought, particularly for disparate impact claims. Id. at 4-10. Roty and Neff also pointed out that the magistrate's "limitation of the production to just one business unit [did] not take into account the fact that the [reduction in force] decisions were reviewed and approved by [human resources]." Id. at 1. In support of their observation that reductions in force were reviewed by human resources, the objections drew attention to the fact that Battelle admitted as much in its responses to Neff's interrogatories. Id. at 1-2, citing Battelle's response to Neff's ninth interrogatory. Roty and Neff also argued that the magistrate's decision "failed to compel the production of the ages and positions of those employees not included in the [reduction in force]." Id. at 1.

{¶ 6} Approximately a month and a half later, the trial court overruled Roty and Neff's objections to the magistrate's decision and adopted the decision in its entirety. (Apr. 24, 2015 Entry Adopting Mag. Decision.) Although the trial court stated that it had "undertaken an independent and de novo review of the record and arguments," it did not specifically address any of Roty and Neff's arguments or state any specific reason for adopting the magistrate's decision. (Emphasis sic.) Id. After further discovery and motions and briefing by the parties, the trial court granted summary judgment to defendants. (Apr. 5, 2016 Decision & Entry.) The trial court in its decision denied both Roty's and Neff's claims because both had failed to present "direct, circumstantial, or statistical [evidence] to establish that age was a factor in the[ir] termination[s]." Id. at 11, 15. In granting summary judgment to Battelle, the trial court also noted that, consistent with a decision from October 1, of 2015, it would not rely on late-filed expert affidavits. Id. at 5.

{¶ 7} Roty and Neff timely appeal.

II. ASSIGNMENTS OF ERROR

{¶ 8} Roty and Neff assign the following errors for our review:

[1.] THE TRIAL COURT ERRED IN REFUSING TO COMPEL PRODUCTION OF STATISTICAL DATA REGARDING THE REDUCTION IN FORCE IN WHICH PLAINTIFFS WERE TERMINATED.
[2.] THE TRIAL COURT ERRED IN CONCLUDING PLAINTIFFS FAILED TO PROVE THE FOURTH PRONG OF THEIR PRIMA FACIE CASES WHEN THEY WERE REPLACED BY AND/OR TREATED LESS FAVORABLY THAN SUBSTANTIALLY YOUNGER INDIVIDUALS.
[3.] THE TRIAL COURT ERRED IN CONCLUDING PLAINTIFFS COULD NOT PROVE THE REDUCTION IN FORCE IN WHICH THEY WERE TERMINATED WAS ADMINISTERED IN A MANNER WHICH WAS A PRETEXT FOR AGE DISCRIMINATION.
[4.] THE TRIAL COURT ERRED IN REFUSING TO CONSIDER THE AFFIDAVITS OF PLAINTIFFS' EXPERTS, DR. WILLIAM NOTZ AND KEMPER CAMPBELL, IN DECIDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT.

III. DISCUSSION

A. First Assignment of Error-Whether the Trial Court Erred in Refusing to Compel Production of Data Regarding the Company-Wide Reduction in Force

{¶ 9} In their first assignment of error, Roty and Neff argue that the trial court erred in failing to compel the production of statistical data regarding Battelle's 2013 reduction in force. (Appellants' Brief at 28-38.) They argue that this error was prejudicial to their case and to their ability to defend against summary judgment because the trial court's decision limiting discovery from Battelle permitted only demographic data for people within a single business unit of the organization who were affected by Battelle's reduction in force. They argue that this limited discovery was insufficient to permit substantially any comparison between the ages of terminated versus retained employees. Id. at 36-38. Battelle and the other defendants-appellees oppose Roty's and Neff's arguments, pointing out that discovery orders are reviewed on appeal under an abuse of discretion standard. (Appellees' Brief at 13-14). See, e.g., Evans v. Summit Behavioral Healthcare , 2016-Ohio-5857, 70 N.E.3d 1217, ¶ 24. Battelle admits, however, that an appellate court should reverse a discovery decision that "is improvident and affects the discovering party's substantial rights." (Appellees' Brief at 14, citing Mauzy v. Kelly Servs. , 75 Ohio St.3d 578, 592, 664 N.E.2d 1272 (1996).) Notwithstanding, Battelle argues that "[t]here was no showing that data from across the entire business, irrespective of whether it was on the revenue side of Battelle or not, could ever hypothetically demonstrate an intention to target Appellants because of their age." (Appellees' Brief at 15-16.) Battelle argues that the trial court's conclusion (from the limited evidence permitted in discovery) that termination decisions were made at the business unit level should be left undisturbed, and, therefore, the statistics sought were not sufficiently relevant to Roty and Neff to be discoverable. Id. at 14-15.

{¶ 10} " 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Evid.R. 401. "All relevant evidence is admissible," absent certain exceptions not salient here, while "[e]vidence which is not relevant is not admissible." Evid.R. 402. That definition of relevance is broad, yet the concept of relevance for purposes of discovery is broader still because discovery may be had as to "any matter, not privileged, which is relevant to the subject matter involved in the pending action" and "[i]t is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." (Emphasis added.) Civ.R. 26(B)(1). In other words, as this Court has previously explained:

It should be kept in mind that the discovery test for relevancy is much broader than the test to be utilized at trial. It is only irrelevant by the discovery test when the information sought will not reasonably lead to the discovery of admissible evidence.

Icenhower v. Icenhower , 10th Dist. No. 75AP-93, 1975 WL 181668, *1 (Aug. 14, 1975).

{¶ 11} It is apparently undisputed that Roty's and Neff's terminations came, at least ostensibly, as part of a reduction in force. In any reduction in force, qualified employees are let go without cause while other qualified employees will escape dismissal. The mere fact that a competent younger employee remained while a competent older employee was fired cannot, standing alone, show impermissible discrimination in such cases. Woods v. Capital Univ. , 10th Dist. No. 09AP-166, 2009-Ohio-5672, 2009 WL 3465827, ¶ 56. At a trial of this case, plaintiffs would have had to "offer additional direct; circumstantial; or statistical evidence tending to indicate that the employer singled [them] out for impermissible reasons." Wasserstrom v. Battelle Mem. Inst. , 2016-Ohio-7943, 74 N.E.3d 827, ¶ 17 ;

Dahl v. Battelle Mem. Inst. , 10th Dist. No. 03AP-1028, 2004-Ohio-3884, 2004 WL 1631677, ¶ 15. In other words, if statistical analysis produces a significant result, that evidence will necessarily be relevant to a "fact that is of consequence to the determination of the action." Evid.R. 401. Such statistics will either show a disparate impact (in which case they are relevant and helpful to the plaintiffs) or they will not show a disparate impact (in which case they are relevant and helpful to the defense).

{¶ 12} When Roty and Neff sought to obtain such "statistical evidence" as they would need to prove their claims, the trial court declined to compel Battelle to produce it. Instead the trial court limited production of documents in the discovery phase of the litigation to requiring only that Battelle produce age figures for a limited few employees who were affected by the reduction in force. (Feb. 23, 2015 Mag. Decision; Apr. 24, 2015 Entry Adopting Mag. Decision.) The trial court found this limitation permissible because Battelle presented evidence that the decision to fire Roty, Neff, and all the other terminated employees was made at the business unit level for each individual. (Feb. 23, 2015 Mag. Decision at 4.) The trial court did not explain or justify the other arguable limitation of its order, that limiting disclosure to those "included" in the reduction in force might be reasonably interpreted to limit discovery to those persons who were terminated and exclude data about those who were retained. Id. in passim. In short, Battelle asserted and the trial court agreed, that company-wide statistics were irrelevant to such an extent that they were not even discoverable. Id.

{¶ 13} But this was not consistent with other undisputed evidence that the reduction in force was part of the company-wide effort to reduce costs by approximately $10 million. (May 7, 2014 Answer at ¶ 10.) Battelle asserts that each firing decision was made at a business unit level. Roty and Neff were entitled to test the veracity of that claim by reviewing a statistical analysis of the whole reduction in force, organization-wide. The trial court denied it the opportunity to do so. The free flow of relevant discovery allows the parties to litigation to evaluate the quality of their own allegations and defenses. Often, discovery promotes settlement. Discovery of relevant information not only promotes fair and just adjudication of parties' claims but also the efficient administration of justice. Access to the data denied to Roty and Neff by the trial court could assist in this pretrial analysis and also could be helpful to a jury in determining whether Battelle engaged in discrimination. If statistics had shown a significant number of persons fired were over the age of 40, while members of the workforce retained were generally under the age of 40 that would have made the existence of discrimination appear "more probable" and created an issue of fact for trial rather than for disposal by summary judgment. Evid.R. 401. If the statistics had showed no age pattern at all, that would have made the possibility of discrimination by Battelle "less probable." Id. In either case, for the purposes of discovery, such evidence was relevant, but access to it was denied by the trial court.

{¶ 14} Battelle also admitted that human resources reviewed all proposed terminations (across business units) before they were implemented. (Feb. 19, 2015 Battelle's Resp. to Neff's First Set of Interrogs. at 7-8; Feb. 19, 2015 Battelle's Resp. to Roty's First Set of Interrogs. at 7-8.) Battelle admitted that its acting vice president of human resources played a role in approving employees selected to be part of the reduction in force. (Feb. 19, 2015 Battelle's Resp. to Neff's First Set of Interrogs. at 7-8; Feb. 19, 2015 Battelle's Resp. to Roty's First Set of Interrogs. at 7-8.) And witnesses testified during discovery suggesting there existed a centralized plan that may have targeted older employees. For example, Marcy Unger, acting senior vice president of human resources at Battelle, admitted that human resources provided guidance to each manager making reduction in force decisions about how to approach the decision. (Dec. 4, 2014 Hearing Tr. at 21, 52, filed June 12, 2015.) Roty testified that a human resources person was present at the reduction in force meeting for her group. Id. at 79-83. Roty explained that the human resources representative wrote the eldest employee's name in the lowest ranked position before the other persons in the meeting ranked the other 30 potentially affected personnel. Id.

{¶ 15} Under these circumstances, where a disparate impact is alleged from a significant company-wide reduction in force, it is likely that statistics, if a significant result is obtained, will be helpful either to the plaintiffs (if there is a pattern of older workers being fired) or to the defense (if there is not). In addition, the trial court was presented with an evidentiary basis for a "reasonabl[e] calculat[ion]" that obtaining statistics regarding the whole reduction in force would have "[led] to the discovery of admissible evidence," in that some witnesses testified in ways that suggested Battelle human resources had guided the reduction in force toward terminating older employees. Civ.R. 26(B)(1).

{¶ 16} Although it was not filed with the trial court at the time it made the discovery decision but in the record on appeal, we also note that material submitted in arguing summary judgment provide support for this view. Neff testified that she heard from her former supervisor that it was his understanding that age was a factor (and even perhaps the primary factor) in the workforce reduction. (Dec. 2, 2014 Neff Dep. at 59-60, filed June 12, 2015) (testifying that her former supervisor told her that the reduction in force was not based on performance but rather "was based on old-timers and salary"). Battelle's human resources director, Staci Palmer, testified at some length during her deposition about a statistical process Battelle had, at times, employed in connection with their legal department to ensure that reductions in force did not have a discriminatory bias. (Nov. 14, 2014 Palmer Dep. Excerpt at 4-15, Ex. 9 to Sept. 23, 2015 Memo in Opp. to Summ. Jgmt.) If such a process was employed in the reduction in force at issue in this case, its results would have been relevant. If the process was not utilized, one reasonable inference (though by no means, the only reasonable inference) would have been that Battelle knew that the reduction in force affecting Roty and Neff, if viewed in a broader context, could have appeared to have had a discriminatory bias and thus avoided producing such statistics.

{¶ 17} Here, the trial court essentially decided ex ante what Battelle's organization-wide statistics would show, i.e., that each firing was made at the business unit level and no significant pattern would emerge. Based on this conclusion, the trial court denied Roty and Neff access to these statistics, the trial court finding that any statistics would be irrelevant. In predetermining that the statistics could not be relevant despite evidence and law indicating that they were relevant for the purposes of discovery, the trial court made an "improvident"

judgment. Mauzy at 592, 664 N.E.2d 1272. Thereafter, the trial court made integral this decision on discovery to granting summary judgment to Battelle and against Roty and Neff. The trial court's decision on the parties' discovery dispute "affect[ed] the discovering party's substantial rights." Id. Because the trial court's decision denying Roty and Neff discovery of organization-wide statistics was both "improvident" and "affect[ed] the discovering party's substantial rights," the trial court's decision constituted an abuse of discretion and we reverse it. Id. Roty and Neff's first assignment of error is sustained.

{¶ 18} The decisions of the trial court on the motion to compel and on the motion for summary judgment (which was decided based on a record without the statistics sought by Roty and Neff), must be reversed and the case remanded so that the trial court can order Battelle to produce company-wide employee age statistics from the period of the relevant reduction in force showing both employees who remained at the company following the reduction in force and those who were terminated pursuant to the reduction in force.

B. Second, Third, and Fourth Assignments of Error-Moot

{¶ 19} Having sustained Roty and Neff's first assignment of error, questions about whether summary judgment was properly decided or whether expert testimony should have been considered are now moot. The trial court will again have the opportunity to consider such matters on remand with statistical data this time being produced as part of discovery.

{¶ 20} Having sustained Roty and Neff's first assignment of error, their second, third, and fourth assignments of error are moot and are considered no further.

IV. CONCLUSION

{¶ 21} In this case, where a disparate impact claim was alleged in regard to a company-wide reduction in force, the circumstances and evidence before the trial court provided a basis for a reasonable calculation that statistical analysis was likely to lead to relevant evidence. That is, such statistics will likely either show a disparate impact (in which case they will be helpful to the plaintiffs) or they will not (in which case they will be helpful to the defense). In either event, they are discoverable. We therefore sustain Roty and Neff's first assignment of error. Their remaining three assignments of error are moot because we have sustained the first assignment of error. It is the judgment of this Court that the judgment of the Franklin County Court of Common Pleas is reversed and cause remanded.

Judgment reversed; cause remanded.

HORTON, J., concurs.

LUPER SCHUSTER, J. dissents.

LUPER SCHUSTER, J., dissenting.

{¶ 22} Because I would affirm the judgment of the trial court, I respectfully dissent.

{¶ 23} In their first assignment of error, Roty and Neff argue that the trial court erred in not compelling the production of company-wide statistical data regarding Battelle's August and September 2013 reduction in force. The majority finds that the trial court abused its discretion in denying Roty and Neff access to these statistics. I disagree.

{¶ 24} According to Roty and Neff, Battelle's August and September 2013 reduction in force had a statistically significant, disproportionate effect on older employees, and the termination decisions were centrally approved by Battelle's human resources personnel. However, based on the evidence presented at the December 2014 hearing, the trial court magistrate concluded that each termination decision in that reduction in force was made at the business unit level. The magistrate found that each business unit manager developed a plan and made an independent decision regarding which employees to terminate. Consequently, the magistrate concluded that Roty and Neff were only entitled to discovery regarding the birthdates and position titles for each employee in their business unit included in the August and September 2013 reduction in force. The magistrate thus denied Roty and Neff's request to compel Battelle to provide statistical data reaching across all of Battelle's business units. Roty and Neff objected to the magistrate's denial of the request, and the trial court overruled their objections and adopted the magistrate's decision in its entirety.

{¶ 25} The record supports the trial court's decision to deny Roty and Neff's request to compel the production of company-wide age and position data. Testimony at the December 4, 2014 hearing indicated that Battelle's August and September 2013 reduction in force employment termination decisions were made at the individual business unit level, not the result of centralized decision-making. Marcy Ungar, Battelle's senior vice president of human resources, testified that Battelle's human resources personnel helped facilitate the reduction in force process in August and September 2013, providing advice and counsel to executive committee members. However, Ungar also testified that the reduction in force decision-making process was made separately within each of Battelle's business units. According to Ungar's testimony, each business unit manager decided whose employment would be terminated, and that manager was required to prepare a justification for the termination decision.

{¶ 26} In my view, because evidence supported the trial court's finding that the principal decision-maker of each of Battelle's business units decided which employees to terminate as part of its August and September 2013 reduction in force, the trial court did not abuse its discretion in denying Roty and Neff's motion to compel company-wide statistics. I agree with the majority that there was testimony that Battelle's human resources department was involved in the August and September 2013 reduction in force terminations. But, contrary to the majority's suggestion, the evidence showed that the involvement was minimal or nonexistent as it related to deciding who would be terminated. I also disagree with the majority's reasoning that company-wide statistics could refute the evidence that termination decisions were primarily made at the business unit level. Similarly, I reject the majority's implicit findings that company-wide statistical data could constitute evidence that the principal decision-maker within Roty and Neff's business unit discriminated against them because of their age and that such data could also show that the termination decisions were influenced by the discriminatory animus of Battelle management outside their business unit. Because I find the trial court did not abuse its discretion in overruling Roty and Neff's motion to compel, I would overrule their first assignment of error.

{¶ 27} Roty and Neff's second assignment of error asserts that the trial court erred in concluding they failed to submit evidence establishing the fourth prong of their prima facie age discrimination claims. In reduction in force cases, the fourth prong of the prima facie test "is modified to require the employee to offer additional direct; circumstantial; or statistical evidence tending to indicate that the employer singled him out for impermissible reasons." (Internal quotations omitted.) Wasserstrom v. Battelle Mem. Inst. , 2016-Ohio-7943, 74 N.E.3d 827, ¶ 17. Because Roty and Neff failed to present additional direct, circumstantial, or statistical evidence to establish age discrimination, their second assignment of error is without merit. Thus, I would overrule their second assignment of error.

{¶ 28} In their third assignment of error, Roty and Neff argue the trial court erred in concluding that they failed to meet their burden of demonstrating that the legitimate, non-discriminatory reason for their terminations was actually pretext for age discrimination. However, pursuant to the McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) analytical framework, because Roty and Neff did not meet their burden of presenting prima facie cases of age discrimination, it was unnecessary for appellees to present a legitimate, non-discriminatory reason for the terminations. For this reason, my disposition of Roty and Neff's second assignment of error would render moot their third assignment of error.

{¶ 29} Lastly, in their fourth assignment of error, Roty and Neff contend the trial court erred in not considering the affidavits of their experts, Kemper Campbell and William Notz, Ph.D., in deciding appellees' motion for summary judgment. Based on my review of the record, I would find the trial court did not abuse its discretion in excluding Campbell's affidavit. Before submitting Campbell's affidavit in opposition to appellees' motion for summary judgment, Roty and Neff had represented to the trial court that Campbell's testimony would not be used at the summary judgment stage. As to Dr. Notz's affidavit, it appears the trial court mistakenly excluded his affidavit from consideration in ruling on appellees' motion for summary judgment. However, any error the trial court committed by not considering Dr. Notz's affidavit was not prejudicial to Roty and Neff because his statements that they cited regarding the absence of statistically significant data would not have satisfied Roty and Neff's evidentiary obligation as to the fourth prong of their prima facie age discrimination cases. Thus, I would overrule Roty and Neff's fourth assignment of error.

{¶ 30} Accordingly, I respectfully dissent.

      The trial court referred to an October 1, 2016 order. We assume this was a typographical error since, at the time the summary judgment decision issued, October 1, 2016 was still in the future.

      The Neff and Palmer depositions were not filed with the trial court until after the discovery decision was made. "Appellate review is limited to the record as it existed at the time the trial court rendered its judgment." Wiltz v. Clark Schaefer Hackett & Co. , 10th Dist. No. 11AP-64, 2011-Ohio-5616, 2011 WL 5184443, ¶ 13.

      We note that that this decision is different from our decision in Wasserstrom , because in Wasserstrom the plaintiff had failed to procure a transcript of the evidence upon which the trial court relied. Wasserstrom at ¶ 37-38. Thus, in Wasserstrom , we assumed the validity of the proceedings and affirmed the discovery decision of the trial court on that basis. Id.