author: Robb, P.J.

text:
    JEFFERIS REAL ESTATE OIL & GAS HOLDINGS, LLC et al., Plaintiffs-Appellees, v. SCHAFFNER LAW OFFICES, L.P. A. & David K. Schaffner et al., Defendants-Appellants.
    No. 17 BE 0042
    Court of Appeals of Ohio, Seventh District, Belmont County.
    Dated: September 12, 2018
    Atty. Todd M. Kildow, Emens & Wolper Law Firm Co., LPA, 250 West Main Street, Suite A, St. Clairsville, Ohio 43950, for Plaintiffs-Appellees and
    Atty. David K. Schaffner, Schaffner Law Offices, Co., LPA, 132 Fair Avenue, NW, New Philadelphia, Ohio 44663, for Defendants/Appellants.
    BEFORE: Carol Ann Robb, Gene Donofrio, Cheryl L. Waite, Judges.
    OPINION AND JUDGMENT ENTRY
   Robb, P.J.

{¶ 1} The Defendants-Appellants ("Kirk heirs") are the heirs of the original holders of a one-half severed mineral interest and the attorney/firm representing them (David K. Schaffner and Schaffner Law Offices, L.P.A.). They appeal the decision of the Belmont County Common Pleas Court granting summary judgment in favor of the Plaintiff-Appellee Jefferis Real Estate Oil & Gas Holdings, LLC et al. and declaring the plaintiff owns 100% of the minerals underlying its property as a result of abandonment under the 2006 Dormant Mineral Act. The court found the claim to preserve filed after service of the notice of abandonment was not valid because there was no record notice the Kirk heirs were successors or assignees of the mineral interest. However, we have previously held such a holding misconstrues the statutory provisions regarding who can file a claim to preserve and the definition of a holder.

{¶ 2} Where the original record holder's mineral interest was still owned at death, a person to whom the mineral interest passed through will or intestacy is entitled to file a claim to preserve and thwart abandonment of the mineral interest, in a case where the probate filings show the person filing a claim to preserve inherited a share of the record holder's entire estate. The fact the mineral interest was not listed in the inventory of the estate or transferred via a probate courts' certificate of title is not dispositive of the question of whether an heir to a deceased record holder can file a claim to preserve and prevent the mineral interest from being deemed abandoned under the DMA. The trial court's judgment is reversed, and the case is remanded for further proceedings.

STATEMENT OF THE CASE

{¶ 3} In 1936, John W. Kirk and Helen S. Kirk reserved one-half of their minerals when they sold the subject property (less than 20 acres) in Belmont County. Helen died testate in 1965, leaving her estate to her five children. Her estate was administered in Belmont County. John W. Kirk died testate in 1987; his will left the residue of his estate to his children through a trust. He was a resident of Texas, and an ancillary administration of his estate was filed in Belmont County. The next-of-kin listed in his estate were his surviving spouse Wilma Kirk and the five children: Jane Hinch, Barbara Turner, Diane Palmer, Marilyn Wright, and John D. Kirk. Some of these children have died, and their heirs are parties. The parties agree the subject mineral interest was not specifically devised in any pertinent will, and none of the estates listed the mineral interest in an inventory or issued a certificate of transfer regarding the mineral interest.

{¶ 4} On March 16, 2013 and March 22, 2013, the plaintiff published notice of abandonment in the newspaper. See R.C. 5301.56(E)(1) (service by certified mail to each holder, successor, or assignee; if service cannot be completed to any holder, then publication). The plaintiff filed an affidavit of abandonment in the Belmont County Recorder's office on May 10, 2013. See R.C. 5301.56(E)(2) (at least 30 but not more than 60 days after notice of abandonment).

{¶ 5} On May 14, 2013, a claim to preserve the mineral interest was filed in the recorder's office. See R.C. 5301.56(H)(1)(a) or (b) (within 60 days after notice was served or published, holder or holder's successors or assignees can file claim to preserve or affidavit identifying savings event). The affidavit for this claim to preserve was signed by Attorney Schaffner as counsel for the children of Jane Hinch: Peter Watt, Richard Watt, Michael Watt, and Jenny Robinson. This claim to preserve named other successor holders to the mineral interest as: Wilma Kirk, John D. Kirk, Jane Hinch, Barbara Turner, Diane Palmer, Marilyn Wright, Edward Turner, Margaret R. Kirk, Karl E. Palmer, Lenane Smith, and other unidentified heirs at law of John and Helen Kirk.

{¶ 6} On May 15, 2013, claims to preserve were filed in the recorder's office by the other children of John W. Kirk or their heirs, with affidavits signed by: Marilyn Wright (a child of the record holders who inherited from both parents); a child of Diane Palmer (Karl E. Palmer); the surviving spouse of John D. Kirk (Margaret R. Kirk); and the children of Barbara Turner (Lenane Smith and Edward Turner).

{¶ 7} On September 4, 2013, the plaintiff filed a complaint against the Kirk heirs who filed claims. The attorney and the law firm involved in filing the claims were also named as defendants, but we refer to the Kirk heirs for simplicity. The complaint sought quiet title of the severed mineral interest and a declaratory judgment finding the mineral interest abandoned under either the 1989 or the 2006 Dormant Mineral Act and extinguished under the Marketable Title Act. The complaint also alleged the claims were fraudulent and sought damages for slander of title. The Kirk heirs filed an answer and a counterclaim seeking a declaration they owned the mineral interest which was not abandoned.

{¶ 8} Initially, the trial court granted judgment on the pleadings in favor of the plaintiffs and declared they owned 100% of the minerals underlying their property. The decision was based on abandonment under the 1989 Dormant Mineral Act. On appeal, we granted a stay pending an Ohio Supreme Court decision on the 1989 DMA. We thereafter reversed the judgment of abandonment under the 1989 DMA due to the Supreme Court's ruling that the former version of the DMA was not self-executing and can no longer be used in lawsuits filed after the enactment of the 2006 DMA. Jefferis Real Estate Oil & Gas Holdings, LLC v. Schaffner Law Offices, L.P.A. , 7th Dist., 2017-Ohio-1013, 86 N.E.3d 966, ¶ 17, citing Corban v. Chesapeake Exploration, L.L.C. , 149 Ohio St.3d 512, 2016-Ohio-5796, 76 N.E.3d 1089 ; Walker v. Shondrick-Nau , 149 Ohio St.3d 282, 2016-Ohio-5793, 74 N.E.3d 427. We remanded for further proceedings on the unaddressed claims, which included abandonment under the 2006 Dormant Mineral Act and extinguishment under the Marketable Title Act. Id. at ¶¶ 2, 32.

{¶ 9} On remand, the plaintiff filed a motion for summary judgment arguing the mineral interest was abandoned under the 2006 DMA and extinguished under the MTA. The Kirk heirs filed an opposition memorandum and a cross-motion for summary judgment. The plaintiff withdrew the motion for summary judgment on the MTA claim.

{¶ 10} On October 8, 2017, the trial court granted summary judgment in favor of the plaintiff, declaring the plaintiff owns 100% of the oil and gas underlying the subject property due to abandonment. In addition to finding the lack of a title transaction in the recorder's office or other savings event, the court found the post-notice-of-abandonment claims to preserve filed under the 2006 DMA were invalid. The court concluded they were not filed by a holder or a holder's successor or assignee as there must be "notice of record" to be a holder or successor thereto. For instance, the court opined "the passing of assets by the laws of intestacy without evidence of such assets being listed in the inventory of the estate" or "filed in the office of the Recorder, did not provide notice of a conveyance or assignment" of the mineral interest to the Kirk heirs. In determining the claims to preserve were invalid, the court stated: "There is no assignment or instrument of succession record to give notice that [the Kirk heirs] are in the chain of title as the successors or assigns of the severed oil and gas interest" and "no record notice in Belmont County that any of the claimants are successors or assigns to the oil and gas interest." The Kirk heirs filed a timely notice of appeal.

ASSIGNMENTS OF ERROR ONE & TWO: ABANDONMENT

{¶ 11} The first two assignments of error set forth by the Kirk heirs provide:

"The trial court erred when it held the oil and gas interest was abandoned and Appellees own One Hundred Percent of the oil and gas."

"The trial court erred when it held that an heir at law that is not listed in an estate administration is prohibited from inheriting mineral property rights."

{¶ 12} Under the 2006 DMA, "[a]ny mineral interest held by any person, other than the owner of the surface of the lands subject to the interest, shall be deemed abandoned and vested in the owner of the surface of the lands subject to the interest if the requirements established in division (E) of this section are satisfied and none of the following applies:" (1) the interest is in coal; (2) the interest is held by the government; or (3) one of six listed savings events has occurred within the 20 years immediately preceding the date on which notice is served or published under division (E). R.C. 5301.56(B). The first savings event is: "The mineral interest has been the subject of a title transaction that has been filed or recorded in the office of the county recorder of the county in which the lands are located." R.C. 5301.56(B)(3)(a). Another example of a savings event is when "[a] claim to preserve has been filed in accordance with division (C) of this section." R.C. 5301.56(B)(3)(e).

{¶ 13} To have a mineral interest deemed abandoned and vested in the surface owner, the surface owner must: "Serve notice by certified mail, return receipt requested, to each holder or each holder's successors or assignees, at the last known address of each, of the owner's intent to declare the mineral interest abandoned." R.C. 5301.56(B), (E)(1). "If service of notice cannot be completed to any holder, the owner shall publish notice of the owner's intent to declare the mineral interest abandoned at least once in a newspaper of general circulation in each county in which the land that is subject to the interest is located." Id. The surface owner can then file an affidavit of abandonment in the recorder's office at least 30 but not later than 60 days after the notice of abandonment is served or published. R.C. 5301.56(E)(2). If the holder of the mineral interest does not timely respond to the notice of abandonment, then the surface owner can file a "notice of failure to file" in the recorder's office, at which point the mineral interest "shall vest in the owner of the surface of the lands." R.C. 5301.56(H)(2). See also former (H)(2) (which, prior to January 30, 2014, provided the surface owner shall cause the county recorder to memorialize the record with a statement of abandonment).

{¶ 14} If "a holder or a holder's successors or assignees" claim the mineral interest has not been abandoned, then "the holder or the holder's successors or assignees" can file, no later than 60 days after service or publication of the notice of abandonment: (a) a claim to preserve the mineral interest in accordance with division (C); or (b) an affidavit identifying a savings event within the twenty years immediately preceding the date on which the notice was served or published. R.C. 5301.56(H)(1)(a)-(b) (and "[t]he holder or the holder's successors or assignees shall notify the person who served or published the notice under division (E) of this section of the filing under this division").

{¶ 15} This means the mineral interest can be preserved from abandonment by filing a timely claim to preserve after the notice of abandonment. Dodd v. Croskey , 143 Ohio St.3d 293, 2015-Ohio-2362, 37 N.E.3d 147 at ¶ 30. A timely claim to preserve filed by one mineral holder after the surface owner published notice of abandonment protects all of the mineral holders. Id. at ¶ 28, citing R.C. 5301.56(C)(2) (a claim that complies with (C)(1) preserves the rights of all holders of a mineral interest in the same lands).

{¶ 16} Initially, the Kirk heirs complain the plaintiff published the notice of abandonment instead of first attempting service by certified mail. However, arguments about the efforts at service of the notice of abandonment can become moot after a claim to preserve is timely filed. Warner v. Palmer , 7th Dist. No. 14 BE 0038, 2017-Ohio-1080, 2017 WL 1102786, ¶ 21, citing Dodd v. Croskey , 7th Dist. No. 12 HA 6, 2013-Ohio-4257, 2013 WL 5437365, ¶ 59.

{¶ 17} It is not disputed that timely claims to preserve were filed by the Kirk heirs in this case, i.e., claims to preserve were filed within 60 days of the publication. See R.C. 5301.56(H)(1)(a). (One of these claims to preserve was filed by the child of the two record holders. The local probate estate filings of one record holder showed her children inherited all her property by will; and the local probate estate filings of the other record holder showed his children inherited the residue of his estate by will through a trust.)

{¶ 18} The dispositive issue on abandonment is whether the claims to preserve were invalid because the Kirk heirs were not record holders or were not specifically "on record" as being successors to the original record holders such as by an estate inventory listing the minerals or a certificate of transfer issued by the probate court. The Kirk heirs assert they were entitled to preserve the mineral interest under the 2006 DMA as they were the heirs of the original record mineral holders and no recorded transfer of the mineral interest occurred prior to the deaths of those original holders.

{¶ 19} The plaintiff claims the trial court properly held "record notice" is necessary to evidence a transfer in order for the claimant to have the ability to file a valid claim to preserve. In support, the plaintiff isolates a sentence in Corban : "the legislature did not intend title to dormant minerals to pass automatically and outside the record chain of title." Corban , 149 Ohio St.3d 512, 2016 -Ohio- 5796, 76 N.E.3d 1089 at ¶ 27. However, this was an observation made while holding the 1989 DMA was not self-executing. And, it was a statement about why title to dormant minerals would not pass to a surface owner through abandonment. It had no relation to mineral interests being preserved by the heir of a deceased record mineral holder.

{¶ 20} The plaintiff also quotes: "Allowing a claim preserving a mineral interest to be filed after the surface owner's notice furthers the legislative purpose because a claim to preserve describes an identifiable mineral-interest holder who presents a chain of title from which that holder claims interest in the mineral rights ." (Emphasis added). Dodd , 143 Ohio St.3d 293, 2015 -Ohio- 2362, 37 N.E.3d 147 at ¶ 36 (where the issue addressed was whether the statute provides for a post-notice-of-abandonment claim to preserve to save the minerals from abandonment). The plaintiff presumes the Court meant a "record chain of title" containing the actual transfer to the claimant and notes the DMA provides a claim to preserve shall consist of a notice stating "the nature of the mineral interest claimed and any recording information upon which the claim is based." R.C. 5301.56(C)(1)(a). The plaintiff essentially interprets this statutory section to mean there must exist recording information specifying the claimant owns the minerals and not merely general probate filings showing the claimant inherited all property.

{¶ 21} On this point, division (C)(1)(a) refers to "any" recording information, meaning the notice is to state the pertinent recording information if there is any. Moreover, the claim to preserve cited the original record holder's severance deed. The original reservation deed is a piece of recording information upon which an heir's claim is based. See Wendt v. Dickerson , 5th Dist., 2018-Ohio-1034, 108 N.E.3d 1174, ¶¶ 2, 52-53 (finding the claims to preserve listed "the recording information upon which the claim is based" by citing to a 1952 deed containing the original reservation of one-half of the oil and gas and thus the heirs of the original record holders preserved the mineral interest).

{¶ 22} The plaintiff complains that allowing a claim to preserve to be filed by the heirs of the record holders does not facilitate the purpose of laws such as the recording statutes, the MTA, and the DMA to facilitate the reliance on public documents, to give notice of record, and to simplify and facilitate land transactions. The plaintiff states the evidence all shows the mineral interest was abandoned and refers to the doctrine of laches. Yet, a post-notice-of-abandonment claim to preserve is a statutory right which preserves the minerals from abandonment, and it is anticipated such a claim to preserve will be filed after 20 or more years have passed without a savings event. This argument, along with the argument that the claim merely takes the case out of the statute and into the court, makes it sound as if the plaintiff is presenting some common law abandonment claim. However, the Supreme Court has stated abandonment is now governed by the 2006 DMA. Corban , 149 Ohio St.3d 512, 2016 -Ohio- 5796, 76 N.E.3d 1089 at ¶¶ 31, 33. None of the DMA cases in the appellate courts or the Supreme Court were remanded to ascertain if the mineral interest was abandoned outside of the DMA, and such a claim was not in the plaintiff's complaint. If the claim to preserve was timely and was permitted to be filed under the 2006 DMA, there is no abandonment. As the claim was timely, the question is whether the Kirk heirs were permitted to file the claim, i.e., whether they were holders or the holders' successors or assignees.

{¶ 23} On this topic, the plaintiff states an heir of a record holder is not necessarily a holder of the mineral interest. Yet, the Kirk heirs are using the term "heir" in context: the heir of the record holder in regard to the subject mineral interest . After reciting the statutory definition of a holder as including not just the record holder but also anyone who derives his rights from or has a common source with the record holder, we observed in Dodd : "Thus, holder would include any heirs or assigns of the Porters." Dodd , 7th Dist. No. 12 HA 6 at ¶ 54. We thereafter concluded the affidavit within the claim to preserve was summary judgment evidence the heirs were entitled to the mineral interest on the record holder's death and were thus holders. Id. at ¶¶ 63-65 (affirmed on other grounds, with this ground not being raised in the Supreme Court).

{¶ 24} The plaintiff quotes a footnote in the Supreme Court's Dodd case: "Presumably, the surface owner can challenge the accuracy of the mineral-interest holder's claim. But that is outside the operation of the Dormant Mineral Act, which addresses only whether a surface owner can employ the act's provisions to deem the mineral rights abandoned, reunite the mineral rights with the surface rights, and vest them in the surface owner." Dodd , 143 Ohio St.3d 293, 2015 -Ohio- 2362, 37 N.E.3d 147 at fn.4. See also id. at fn.2. As stated above, Dodd was a case where the surface owner challenged (in the trial court and appellate court) the right of an heir to file a claim to preserve. In addition, the footnote spoke of challenging the "accuracy" of the claim. However, the plaintiff does not challenge the factual accuracy of the sworn assertions that the Kirk heirs were the record holders' heirs and the successor holders. That is, the plaintiff does not contend the Kirk heirs were not entitled to inherit the mineral interest from one or both record holders based on the probate filings (and there was no evidence the record holders disposed of the mineral interest before their deaths).

{¶ 25} The plaintiff's rationale (for claiming the Kirk heirs are not holders) is not that the Kirk heirs would not have been entitled to have the specific mineral interest officially transferred into their names after the record holder's death. Rather, the plaintiff's rationale is based upon the failure of the Kirk heirs to ensure there occurred a record transaction which specifically referred to them as having inherited this particular mineral interest. In other words, the plaintiff argues the Kirk heirs, regardless of demonstrating their right to inherit the mineral interest, did not have the ability to file a claim to preserve without a recorded transaction specifically declaring their ownership of the mineral interest, which must be identified by description. The position is: a person who inherits all of a record holder's real estate under a will, a person who inherits the residue of a record holder's estate under a will that does not specifically dispose of the mineral interest, or a person who inherits a share of all the record holder's property under the laws of intestacy cannot preserve the mineral interest from abandonment by filing a claim to preserve if the particular mineral interest is not explicitly mentioned or transferred in the probate filings. (Such a position suggests the heirs of assets not listed in the record holder's estate inventory {and thus not issued a certificate of title in the probate court} would have the DMA claim to preserve deadline of 60 days to: open/reopen an estate, send out estate notices, have an administrator/executor appointed, file an amended inventory, record a certificate of title, and then file the claim to preserve.)

{¶ 26} The Kirk heirs urge this court to apply our holding in Warner (where many of the same heirs were defendants as to another mineral interest owned in part by John W. Kirk). In remanding this case for disposition of unaddressed issues, this court cited our contemporaneous Warner case as providing precedent on some remaining issues. Jefferis , 7th Dist. at ¶ 32, citing Warner v. Palmer , 7th Dist. No. 14 BE 0038, 2017-Ohio-1080, 2017 WL 1102786. The Kirk heirs complain the trial court disregarded this court's holding on the issue of whether heirs of a deceased grantor who severed and reserved the mineral interest can preserve the minerals with a claim to preserve.

{¶ 27} In Warner , the trial court found a claim to preserve was invalid as the defendant-claimant was not entitled to file the claim. Warner , 7th Dist. No. 14 BE 0038 at ¶ 21. On appeal, the defendant argued the trial court improperly blended the analysis for whether there was a qualifying title transaction under the DMA with a determination as to who can file a post-notice claim to preserve. See id. at ¶ 22. It was noted the trial court granted judgment on the pleadings based on a legal theory that the claimant could not file a valid claim to preserve because there was no qualifying title transaction. Id. at ¶ 28. We opined: "this is not the standard to determine who is eligible to file a claim to preserve." Id. We stated the documents relied upon by the surface owner failed to show the Kirk heirs did not inherit the right of a record holder in the mineral interest, noting a claim to preserve can be filed by a holder or a holder's successor "whether on record or not." Id. It was observed "the statute does not connect the concept of who is a holder with the savings event requirement of recording a title transaction in the recorder's office." Id. at ¶ 23. This court ruled:

A person does not lose an inherited mineral interest under probate law merely because it was not listed during an estate administration; they may lose it due to other pertinent facts under a law such as the 2006 Dormant Mineral Act (via time lapse without a savings event and a failure to file a timely claim to preserve or affidavit identifying a savings event). However, if a person to whom the mineral interest should have been transferred during an estate administration (or their representative, such as an heir's trustee) files a timely post-notice-of-abandonment claim to preserve, then the person would not lose the mineral interest under the 2006 Dormant Mineral Act.

Id. at ¶ 26. In drawing these conclusions, we relied on the language of the statute.

{¶ 28} As aforementioned, the statute provides for service of the notice of abandonment by certified mail "to each holder or each holder's successor or assignees" and service by publication if service cannot be completed "to any holder." R.C. 5301.56(E)(1). See also R.C. 5301.56(G)(5). The notice shall contain the "name of each holder and the holder's successors and assignees, as applicable." R.C. 5301.56(F)(1). In response, the post-notice-of-abandonment claim to preserve can be filed by "a holder or a holder's successors or assignees." R.C. 5301.56(H)(1). An heir is a holder if his rights "succeed to the rights of" the record holder. See Warner , 7th Dist. No. 14 BE 0038 at ¶ 25.

{¶ 29} Additionally, a holder is broadly defined by the DMA. A "record holder" is only one type of "holder" under the DMA. The statute specifically defines holder as "the record holder of a mineral interest, and any person who derives the person's rights from, or has a common source with, the record holder and whose claim does not indicate, expressly or by clear implication, that it is adverse to the interest of the record holder." (Emphasis added.) R.C. 5301.56(A)(1). There is no modifier in this definition requiring "record notice" or "notice of record" that a person derived her rights from the record holder.

{¶ 30} We conclude the trial court improperly applied the analysis concerning whether there existed a recorded title transaction to the issue of whether an heir of the record holder who (along with other heirs) was bequeathed all of the record holder's property was entitled to file a claim to preserve in order to thwart abandonment. (Likewise, the issue of investigating the addresses of the holder's successors for purposes of the certified mailing of the notice of abandonment prior to service by publication is a different issue than the issue of who can thereafter preserve the mineral interest by filing a claim to preserve.) A timely post-notice-of-abandonment claim to preserve used to thwart abandonment of a mineral interest can be filed by a holder. It can also be filed by a holder's successor or a holder's assignee.

{¶ 31} The DMA specifically states a person need not be a record holder to qualify as a holder. A person who has a common source with the record holder (if his claim does not indicate it is adverse to the record holder's interest) is statutorily defined as a holder. Furthermore, a person who derives her rights from the record holder can file a claim to preserve and successfully preserve the mineral interest (if her claim does not indicate it is adverse to the record holder's interest). A person who derives her rights from the record holder is herself a holder under the plain terms of the statute. The plaintiff's position would require us to ignore this statutory language or add modifiers to the person who derived her rights from the record holder.

{¶ 32} Under the DMA, entitlement to file a post-notice-of-abandonment claim to preserve does not depend on whether those inheriting a mineral interest had the specific mineral interest memorialized in the record. Contrary to the statement of the trial court and the plaintiff, "record notice" that a record holder's mineral interest was officially and specifically probated and placed into the name of those who filed the claim to preserve is not the test used by the statute to determine who is a holder or who is a successor or assignee of a holder. For purposes of the Supreme Court dicta referring to an "identifiable mineral holder" who presents a "chain of title" and preserves the mineral interest, this can be accomplished where the record holder owned the mineral interest at death, a claim to preserve is filed by an heir of the record holder, and probate filings in the county where the mineral interest is located show the heir's entitlement to inherit the estate, the real estate, or the residue of the record holder's estate (even if the probate filings do not show a specific listing of the mineral interest within the inventory or disposition by certificate of title ). Unless the Supreme Court holds otherwise, we are maintaining this position.

{¶ 33} In accordance, we sustain the assignments of error filed by the Kirk heirs on the application of the language of the 2006 DMA on holders who can file a claim to preserve and thereafter avoid a court's declaration of abandonment. The trial court's judgment invalidating their claims to preserve and declaring the mineral interest abandoned under the 2006 DMA is reversed.

Alternative DMA argument

{¶ 34} Regarding the abandonment decision, the Kirk heirs alternatively argue the 1936 one-half mineral reservation was restated in a 1983 deed conveying the land (surface and the other one-half of the minerals) from Murphy to himself and his wife. (See A/E 1, pt. B at p. 8-9). They cite our Blackstone case which concluded a volume and page number is not required in order for a reference to a prior mineral reservation to be considered specific. See Blackstone v. Moore , 7th Dist., 2017-Ohio-5704, 94 N.E.3d 108, ¶¶ 37-38 (adopting an analysis of various factors for determining whether a reference is general or specific). That case is currently on appeal in the Ohio Supreme Court after a discretionary appeal was accepted in Blackstone v. Moore , 152 Ohio St.3d 1406, 2018-Ohio-723, 92 N.E.3d 878. The Kirk heirs note the 1983 deed in the plaintiff's chain of title was even more specific than the deed in Blackstone because: it named John W. and Helen S. Kirk as the parties who previously sold the land; it said they sold the land to Louie Hagedorn; it said they excepted and reserved one-half of all the oil and gas in and underlying the premises when sold to said grantee; and it specifically identified the prior deed by volume and page number.

{¶ 35} However, the cited Blackstone analysis was under the MTA, not under the DMA. The DMA requires the mineral interest to have been the "subject of" a title transaction which was recorded in the recorder's office in order to qualify as a savings event. R.C. 5301.56(B)(3)(a). The MTA does not contain this language. It is the MTA with its establishment of marketable title through extinguishment that is concerned with the root of title and the subsequent 40 years in the chain, not the DMA (which reunites minerals with the surface without regard to whether a prior reservation was restated in the root of title or a later surface deed). As to the DMA, this court has previously concluded the mineral interest is not the "subject of" a surface deed which merely contains a restatement of a prior mineral reservation. Shilts v. Beardmore , 7th Dist. No. 16 MO 0003, 2018-Ohio-863, 2018 WL 1225745, ¶¶ 9-10 ; Dodd v. Croskey , 7th Dist. No. 12 HA 6, 2013-Ohio-4257, 2013 WL 5437365, ¶ 39 ("Here, the primary purpose of the title transaction is the sale of surface rights. While the deed does mention the oil and gas reservations, the deed does not transfer those rights. In order for the mineral interest to be the 'subject of' the title transaction the grantor must be conveying that interest or retaining that interest"), affirmed on other grounds, Dodd v. Croskey , 143 Ohio St.3d 293, 2015-Ohio-2362, 37 N.E.3d 147.

{¶ 36} In sum, the alternative argument presented by the Kirk heirs, that the surface holder does not have a deed which conveys an interest in the Kirk mineral interest to them, is not relevant to a DMA analysis. This argument against abandonment under the DMA is misplaced as it involves an MTA analysis for extinguishment, which is discussed in their final three assignments of error. (In any event, the abandonment decision is reversed as set forth supra.)

ASSIGNMENTS OF ERROR THREE TO FIVE: MTA EXTINGUISHMENT

{¶ 37} The third through fifth assignments of error filed by the Kirk heirs provide:

"The trial court erred when it failed to apply the specific provisions of the Marketable Title Act ( R.C. 5301.56 ) and the applicable case law to the facts in this case and instead applied the general provisions of the Marketable Title Act."

"The trial court erred when it overruled Appellants' motion for summary judgment on the issue that the MTA general provisions do no reunite the severed mineral estate with the surface estate because there were title transactions which preserved the interests."

"The trial court erred when it overruled Appellants' motion for summary judgment on the issue that Appellees do not have a root deed granting them an interest in the minerals."

{¶ 38} If the MTA applies to a mineral interest, the Kirk heirs argue the filings in the probate estates of the record holders (Helen S. Kirk in 1965 and John W. Kirk in 1987) constitute title transactions even without a certificate of title as it shows they were the heirs of the record holders who inherited Helen's personal and real property (which would have included her half of the one-half mineral interest) and John's residue (which would have included any mineral interest he owned on death). They also argue the plaintiff's alleged root of title is a 1960 deed which repeats the Kirk mineral reservation, concluding this cannot be the root of title because it does not grant them title to the entire property (surface and minerals).

{¶ 39} Below, the plaintiff withdrew its motion for summary judgment on the MTA due to our Blackstone holding, regarding what constitutes a specific reference to a prior mineral reservation in a surface deed. Yet, the Kirk heirs had filed a cross-motion for summary judgment. They ask this court to proclaim the DMA is a specific statute which should be applied to a mineral interest instead of the general provisions of the remainder of the MTA. They cite cases from this district before the Supreme Court's Corban case made clear the distinction between the DMA's abandonment and the MTA's extinguishment (combined with "null and void" language). They cite R.C. 1.51 and 1.52. These statutes instruct courts to harmoniously construe conflicting statutes; the specific provision is only applied over the general provision if there is an irreconcilable conflict (unless the general provision is the later adoption and the manifest intent is that the general provision prevail).

{¶ 40} In Blackstone , a case currently on appeal in the Ohio Supreme Court, we found the trial court correctly allowed the plaintiff to argue under both the MTA and DMA as both apply to a mineral interest. Blackstone , 7th Dist. at ¶¶ 11-13, 40. We found a claim to preserve timely filed by the heirs under the 2006 DMA preserved the mineral interest from abandonment. Id. at ¶ 18. We then applied the MTA and found the mineral interest was not extinguished thereunder due to a reference to the mineral reservation in a surface deed. Id. at ¶¶ 28-40.

{¶ 41} Here however, the trial court ruled the claims to preserve were not filed by a holder and the mineral interest was abandoned . The trial court never reached the MTA extinguishment claim or the issues raised concerning the MTA. We generally refrain from ruling on arguments and claims not ruled upon by the trial court as the issues are not ripe for our review where the trial court proceeded as if they were moot due to another ruling. Jefferis , 7th Dist. at ¶¶ 30-31, citing Bowen v. Kil-Kare, Inc. , 63 Ohio St.3d 84, 88-89, 585 N.E.2d 384 (1992), fn. 5, Murphy v. Reynoldsburg , 65 Ohio St.3d 356, 360, 604 N.E.2d 138 (1992) (de novo summary judgment review does not mean the trial court need not first rule on issues presented in motions), and a sampling of appellate cases.

{¶ 42} In Jefferis , we noted two cases where this court applied the 1989 DMA and refused to address 2006 DMA arguments not reached by the trial court and where the Supreme Court did not remand to this court to reach the 2006 DMA claims we refused to address; instead, the Court reversed one case and affirmed on other grounds and remanded to the trial court in another case. Jefferis , 7th Dist. at ¶¶ 30-31, citing Swartz v. Householder , 150 Ohio St.3d 341, 2016-Ohio-5817, 81 N.E.3d 1221 and Taylor v. Crosby , 150 Ohio St.3d 344, 2016-Ohio-5820, 81 N.E.3d 1223. More specifically, we took a position refusing to rule on an MTA extinguishment claim that was not reached by the trial court when ruling on abandonment; in other words, remand on unaddressed MTA claims is proper where a reviewing court reverses on the claims the trial court did address. See, e.g., Jefferis , 7th Dist. at ¶¶ 29, 32 ; Stalder v. Bucher , 7th Dist. No. 14 MO 0010, 2017-Ohio-725, 2017 WL 823760, ¶¶ 4, 15.

{¶ 43} In maintaining our position, we refrain from deciding the claim for which the trial court did not issue a ruling. The trial court did not find the mineral interest was extinguished under the MTA, failing to reach this claim because the court found abandonment of the minerals under the DMA. As we are reversing the abandonment decision, the case is remanded for further proceedings on the MTA extinguishment claim.

{¶ 44} The trial court's judgment is reversed, and this case is remanded for further proceedings.

Donofrio, J., concurs.

Waite, J., concurs.

      The court specified assets passing by intestacy and applied the same theory to assets passing by a general devise in a will (where the mineral interest was not listed in the estate inventory).

      The word "heir" could encompass those who inherited by will (including a beneficiary of a general devise of all assets or all real estate or a beneficiary of residuary clause) or by intestate succession as an heir at law. Without expressing an opinion on any distinctions, we note this is not a case involving the lack of a probate estate for a record holder.

      If a certificate of title had been issued by the probate court (as the plaintiff suggests may be required in order for the heirs to be considered holders), one could argue the heirs would actually be considered the "record holder" as the record in general is defined as including official public records and encompasses a filing in the probate or other court. R.C. 5301.47(B) -(C) (these definitions apply to R.C. 5301.47 to 5301.56 ). Compare R.C. 5301.56(B)(3)(a) (one savings event which would preclude the filing of a notice of abandonment occurs where the mineral interest was subject to a title transaction plus the title transaction was filed or recorded in the county recorder's office where the lands are located). As holder is expressly defined as encompassing more than just a record holder, this may support the conclusion that a certificate of title is not a requirement to qualify as a holder. R.C. 5301.56(A)(1).


source: Caselaw Access Project

author: Delaney, J.

license: Public Domain

text:
    Gerald BRAGG, et al., Plaintiffs-Appellants v. GFS MARKETPLACE, LLC, Defendant-Appellee
    No. 2018CA00006
    Court of Appeals of Ohio, Fifth District, Stark County.
    DATE OF JUDGMENT ENTRY: September 19, 2018
    STACIE L. ROTH, The Carnegie Building, 236 Third Street, Canton, OH 44702, For Plaintiffs-Appellants.
    JANE M. LYNCH, JARED A. WAGNER, 800 Performance Place, 109 North Main Street, Dayton, OH 45402, For Defendant-Appellee.
    JUDGES: Hon. William B. Hoffman, P.J., Hon. Patricia A. Delaney, J., Hon. Craig R. Baldwin, J.
   Delaney, J.

{¶ 1} Plaintiffs-Appellants Gerald Bragg and Nancy Bragg appeal the December 28, 2017 judgment entry of the Stark County Court of Common Pleas.

FACTS AND PROCEDURAL HISTORY

{¶ 2} In November 2013, Plaintiff-Appellant Gerald Bragg was working as a part-time seasonal employee of Honeybaked Ham. As part of his job duties, Bragg would visit the Canton GFS store once or twice a week to pick up supplies.

{¶ 3} On November 27, 2013, Bragg slipped and fell as he entered the Canton GFS store to pick up supplies for Honeybaked Ham. Bragg's fall occurred in the entrance way to the store where the grocery carts are kept. He fell after only taking a few steps inside the store. As a result of Bragg's fall, he suffered injuries to his shoulder.

{¶ 4} The Braggs originally filed their complaint seeking damages based on premises liability and loss of consortium against Defendant-Appellee GFS Marketplace, LLC, on November 24, 2015. Pursuant to the trial court's scheduling order, the discovery cutoff was July 15, 2016. The matter went to mediation on or around June 9, 2016, but it did not settle. GFS filed a motion for summary judgment on August 5, 2016. In support of its motion, GFS utilized the deposition of Gerald Bragg and a copy of the store security video, which recorded Bragg's fall. The Braggs dismissed their complaint without prejudice on August 19, 2016.

{¶ 5} The Braggs re-filed their complaint on August 16, 2017, alleging the same causes of action against GFS. Pursuant to the trial court's scheduling order, the discovery cutoff was set for May 18, 2018 and dispositive motions were due June 15, 2018.

{¶ 6} GFS filed a motion for summary judgment on October 31, 2017. It argued it was entitled to judgment as a matter of law on the Braggs' premises liability claim. In support of its motion, GFS utilized Gerald Bragg's deposition and a copy of the store security video, which recorded Bragg's fall.

{¶ 7} On October 31, 2017, the Braggs filed a motion for extension of time pursuant to Civ.R. 56(F). In their motion, they requested an enlargement of time from November 13, 2017 to June 1, 2018 in which to file their response to the motion for summary judgment. The Braggs argued they needed more time to conduct discovery. In support of their motion, they attached their counsel's affidavit that stated, "[i]n order to fully respond to the allegations set forth in the Motion for Summary Judgment filed by Defendant, it is necessary to obtain additional discovery in this matter, including, but not limited to, receiving answers to Plaintiffs' written discovery that will be provided to Defendant and conducting depositions."

{¶ 8} GFS filed a response to the Braggs' motion for extension. It argued an extension of six months to conduct discovery was unnecessary because the present matter was a re-filing; discovery was completed in the Braggs' original action. GFS contended the Braggs failed to establish sufficient reasons why a Civ.R. 56(F) extension was necessary to respond to its motion for summary judgment. In the alternative to a six-month extension, GFS stated it would not object if the trial court granted a one to two month extension to conduct discovery.

{¶ 9} On November 21, 2017, the trial court denied the Braggs' motion for extension. It found the Braggs failed to establish sufficient grounds as to why they could not present adequate facts to oppose the motion for summary judgment. The trial court found the Braggs failed address in their motion that the present case was a re-filed action. The trial court did establish a new briefing schedule. The Braggs' response was due on December 4, 2017; GFS's reply was due on December 11, 2017; and the non-oral hearing was scheduled for December 12, 2017.

{¶ 10} The Braggs filed a motion to incorporate discovery from the original action into the re-filed action. The trial court granted the motion on December 5, 2017. The Braggs also filed their response to the motion for summary judgment on December 4, 2017.

{¶ 11} On December 28, 2017, the trial court granted GFS's motion for summary judgment. It found as a matter of law that GFS was entitled to summary judgment on the Braggs' claim for premises liability. The trial court determined the deposition testimony filed pursuant to Civ.R. 56(C) showed Gerald Bragg could not identify what caused him to slip and he admitted he may have slipped on water and/or snow tracked into the store.

{¶ 12} It is from this judgment the Braggs now appeal.

ASSIGNMENTS OF ERROR

{¶ 13} The Braggs raise two Assignments of Error:

{¶ 14} "I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED PLAINTIFF-APPELLANTS' MOTION FOR EXTENSION OF TIME IN WHICH TO FILE THEIR MEMORANDUM IN OPPOSITION TO DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT TAKEN PURSUANT TO CIVIL RULE 56(F).

{¶ 15} "II. THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT."

ANALYSIS

I. Civ.R. 56(F) Motion for Continuance

{¶ 16} The Braggs argue in their first Assignment of Error that the trial court abused its discretion when it denied their Civ.R. 56(F) motion for additional time for discovery. We disagree.

{¶ 17} Civ.R. 56(F) provides:

(F) When affidavits unavailable
Should it appear from the affidavits of a party opposing the motion for summary judgment that the party cannot for sufficient reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just.

{¶ 18} Civ.R. 56(F) provides the remedy for a party who seeks a continuance on a motion for summary judgment in order to conduct discovery relevant to the motion. TPI Asset Mgt., L.L.C. v. Baxter , 5th Dist. Knox No. 2011CA000007, 2011-Ohio-5584, 2011 WL 5143308, ¶ 16 citing Jacobs v. Jones, 10th Dist. Franklin No. 10AP-930, 2011-Ohio-3313, 2011 WL 2586741, ¶ 58 citing Hahn v. Groveport , 10th Dist. Franklin No. 07AP-27, 2007-Ohio-5559, 2007 WL 3027075, ¶ 30, citing Gates Mills Invest. Co. v. Pepper Pike , 59 Ohio App.2d 155, 168, 392 N.E.2d 1316 (8th Dist.1978). Just as this Court reviews the resolution of discovery matters under an abuse of discretion standard, the decision whether to grant a motion for extension of time in order to conduct further discovery lies within the broad discretion of the trial court and will be reversed on appeal only for an abuse of discretion. McCord v. Ron Laymon Trucking Co. , 5th Dist. Knox No. 04CA000033, 2005-Ohio-4399, 2005 WL 2045390, ¶ 14. An abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

{¶ 19} Civ.R. 56(F) requires a party opposing summary judgment to submit affidavits with sufficient reasons stating why he cannot present by affidavit facts sufficient to justify its opposition. "Mere allegations requesting a continuance or deferral of action for the purpose of discovery are not sufficient reasons why a party cannot present affidavits in opposition to the motion for summary judgment. There must be a factual basis stated and the reasons given why it cannot present facts essential to its opposition of the motion." McCord , supra at ¶ 15 citing Gates Mills Invest. Co., supra.

{¶ 20} A trial court does not abuse its discretion in denying a request for a continuance in order to respond to a motion for summary judgment where the party seeking the continuance "did not sustain [its] burden of demonstrating that a continuance was warranted for further discovery." Gates Mills Invest. Co., supra.

{¶ 21} Here, a review of the record shows that the Braggs filed their original complaint on November 24, 2015, alleging premises liability and loss of consortium based on Gerald Braggs' fall at GFS on November 27, 2013. The trial court issued a scheduling order setting the discovery cutoff for July 15, 2016 and established a briefing schedule for summary judgment motions. (Judgment Entry of Assigned Dates, Case No. 2015CV02470, Dec. 15, 2015). The pretrial order set the final pretrial conference for August 23, 2016 and a trial date for September 12, 2016. The matter proceeded to mediation but did not settle. The Braggs served interrogatories and document requests to GFS, to which GFS responded. GFS's response included its incident report for the November 27, 2013 accident. After the close of discovery, GFS filed a motion for summary judgment supported by the deposition of Gerald Bragg. The Braggs' response to the motion for summary judgment was due on August 19, 2016. On August 19, 2016, the Braggs dismissed their complaint without prejudice.

{¶ 22} The Braggs re-filed their complaint on August 16, 2017, alleging the same causes of action against GFS. The trial court issued a scheduling order setting the discovery cutoff for May 18, 2018 and dispositive motions due on June 15, 2018.

{¶ 23} GFS filed its motion for summary judgment on October 31, 2017. The arguments asserted by GFS in its motion for summary judgment were the same argued in the prior case. The Braggs requested a continuance pursuant to Civ.R. 56(F) to conduct additional discovery, claiming more time was needed to receive answers to the Braggs' written discovery and conduct depositions. GFS filed a memorandum in opposition, arguing the Braggs conducted discovery in the previous action, including submitting written discovery requests to GFS, to which GFS responded. GFS conducted the deposition of Gerald Bragg and it was used to support its motion for summary judgment.

{¶ 24} The trial court denied the Braggs' motion for continuance pursuant to Civ.R. 56(F). The trial court noted the Braggs argued they required additional discovery "without any mention of the previously filed action that was pending for nine months, wherein discovery was conducted, a mediation was conducted, and a motion for summary judgment, containing the exact same arguments as asserted in the instant case, was pending with the Plaintiffs dismissed the action instead of responding to the motion for summary judgment." (Judgment Entry, Nov. 21, 2017). Based on this record, we cannot conclude the trial court abused its discretion in denying the Braggs' motion for continuance to conduct additional discovery in order to respond to GFS's motion for summary judgment.

{¶ 25} In TPI Asset Mgt., L.L.C. v. Baxter , 5th Dist. Knox No. 2011CA000007, 2011-Ohio-5584, 2011 WL 5143308, we analyzed a similar factual situation where a defendant requested additional time to conduct discovery in a re-filed action. In the original action, the matter proceeded through discovery and the plaintiff filed a motion for summary judgment. Id. at ¶ 3. The plaintiff dismissed its complaint without prejudice on the eve of trial. Id. The plaintiff re-filed the complaint, alleging the same causes of action. Id. at ¶ 4. Discovery was exchanged between the parties. Id. The plaintiff re-filed its motion for summary judgment and the defendant requested a continuance pursuant to Civ.R. 56(F) to conduct additional discovery. Id. at ¶ 5. He attached an affidavit stating he desired to take the deposition of counsel for plaintiff and an employee of the plaintiff, and submit written interrogatories, but did not have time to do so because of counsel's workload. Id. The plaintiff responded to the motion, arguing the defendant had ample time to conduct discovery because the case was a re-filing. Id. The trial court did not rule on the Civ.R. 56(F) motion, but granted the plaintiff's motion for summary judgment. Id. at ¶ 6.

{¶ 26} On appeal, we affirmed the trial court's implicit denial of the defendant's Civ.R. 56(F) motion. We found the trial court did not abuse its discretion to deny the motion because the defendant failed to meet his burden to establish he needed to conduct additional discovery. Id. at ¶ 23. The record in that case showed the matter was pending in the trial court for almost a year and was dismissed right before trial. Id. The case was re-filed within three months and the summary judgment was identical to the original motion for summary judgment, supported by the same Civ.R. 56 evidence. Id. The record in TPI did not indicate that the defendant could not adequately respond to the summary judgment motion. Id.

{¶ 27} Similar to TPI , we find the record in the present case does not support the Braggs' assertion they could not adequately respond to the summary judgment motion. Our ruling today is not that in all re-filed cases, a continuance to conduct discovery pursuant to Civ.R. 56(F) is never warranted. Rather, it is the burden of the party opposing summary judgment to submit affidavits with sufficient reasons stating why she or he cannot present by affidavit facts sufficient to justify its opposition. The party must state a factual basis and the reasons why it cannot present facts essential to its opposition of the motion. In this case, the trial court determined the Braggs failed to meet their burden and we find the record supports the trial court's determination.

{¶ 28} The Braggs' first Assignment of Error is overruled.

II. Motion for Summary Judgment

{¶ 29} The Braggs argue in their second Assignment of Error that the trial court erred when it granted the motion for summary judgment in favor of GFS.

{¶ 30} We refer to Civ.R. 56(C) in reviewing a motion for summary judgment which provides, in pertinent part:

Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * * A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in the party's favor.

{¶ 31} The moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record before the trial court, which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim. Dresher v. Burt , 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). The nonmoving party then has a reciprocal burden of specificity and cannot rest on the allegations or denials in the pleadings, but must set forth "specific facts" by the means listed in Civ.R. 56(C) showing that a "triable issue of fact" exists. Mitseff v. Wheeler , 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801 (1988).

{¶ 32} Pursuant to the above rule, a trial court may not enter summary judgment if it appears a material fact is genuinely disputed. Vahila v. Hall , 77 Ohio St.3d 421, 429, 674 N.E.2d 1164 (1997), citing Dresher v. Burt , 75 Ohio St.3d 280, 662 N.E.2d 264 (1996).

{¶ 33} As an appellate court reviewing summary judgment motions, we must stand in the shoes of the trial court and review summary judgments on the same standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. , 30 Ohio St.3d 35, 506 N.E.2d 212 (1987).

{¶ 34} In order to establish a claim for negligence, a plaintiff must show: (1) a duty on the part of defendant to protect the plaintiff from injury; (2) a breach of that duty; and (3) an injury proximately resulting from the breach. Jeffers v. Olexo , 43 Ohio St.3d 140, 142, 539 N.E.2d 614 (1989). In their motion for summary judgment, GFS argued there was no genuine issue of material fact that GFS did not owe the Braggs a duty of care and in the alternative, if the trial court found it did owe a duty of care, reasonable minds could only conclude GFS did not breach its duty of care.

{¶ 35} In a premises liability case, the relationship between the owner or occupier of the premises and the injured party determines the duty owed. Gladon v. Greater Cleveland Regional Transit Auth. , 75 Ohio St.3d 312, 315, 662 N.E.2d 287 (1996) ; Shump v. First Continental-Robinwood Assocs. , 71 Ohio St.3d 414, 417, 644 N.E.2d 291 (1994). Ohio adheres to the common-law classifications of invitee, licensee, and trespasser in cases of premises liability. Shump, supra; Boydston v. Norfolk S. Corp. , 73 Ohio App.3d 727, 733, 598 N.E.2d 171, 175 (4th Dist.1991).

{¶ 36} The parties do not dispute Gerald Bragg was a business invitee on November 27, 2013, when he entered the GFS store in Canton, Ohio. An invitee is defined as a person who rightfully enters and remains on the premises of another at the express or implied invitation of the owner and for a purpose beneficial to the owner. Broka v. Cornell's IGA Foodliner Inc. , 5th Dist. No. 12CA100, 2013-Ohio-2506, 2013 WL 3147687, ¶ 20 citing Gladon, supra at 315, 662 N.E.2d 287

{¶ 37} The business owner is not an insurer of the customer's safety, but the business owner does owe the business invitee a duty of ordinary care to maintain the premises in a reasonably safe condition and to warn of hidden dangers. However, a business owner owes no duty to protect an invitee from dangers that are known to the invitee or are so obvious and apparent to the invitee he or she may be reasonably expected to discover them and protect him or her against them. Sidle v. Humphrey , 13 Ohio St.2d 45, 48, 233 N.E.2d 589 (1968). In other words, a premises owner owes no duty to persons entering the premises regarding dangers which are open and obvious. Armstrong v. Best Buy Company, Inc. , 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, paragraph 5 of the syllabus (Citation omitted.)

{¶ 38} To establish negligence in a slip and fall case, it is incumbent upon the plaintiff to identify or explain the reason for the fall. Stamper v. Middletown Hosp. Assn. , 65 Ohio App.3d 65, 67-68, 582 N.E.2d 1040, 1042 (12th Dist.1989) citing Cleveland Athletic Assn. Co. v. Bending , 129 Ohio St. 152, 194 N.E. 6 (1934). Where the plaintiff, either personally or by outside witnesses, cannot identify what caused the fall, a finding of negligence on the part of the defendant is precluded. Id.

{¶ 39} In the case sub judice, Gerald Bragg testified in his deposition that he did not know what caused him to slip on the floor:

A. * * * The parking lot was wet because it snowed earlier in that day but it melted. I walked in. There's a walk-off rug there. I walked over to this alcove where the shopping carts are kept because I was going to need one. I stepped on this gray knobby vinyl area and I went down right now with no warning. There were no yellow cones set out to warn you of a slippery floor or anything. I walked back in there. Like I said, I don't know which foot I put down but I fell instantly.
* * *
Q. What did you step on that caused your slip and fall?
A. I would have no idea other than it was very slippery, whatever it was. I don't know whether the carts had snow on them from earlier or water on them. I couldn't see anything.
* * *
Q. Do you know what the substance is that caused your fall?
A. No.
Q. You said you stepped on something slippery in the vestibule.
A. Yes. I didn't take the time to get a sample or anything.
Q. You didn't inspect that after you fell?
A. No. At that point I was a little more concerned about myself.

(T. 25-26, 33-34).

{¶ 40} Gerald Bragg could not identify what caused his fall, other than the floor was allegedly slippery. There is no evidence in the record that GFS knew of the alleged slippery status of the floor or how long the floor was slippery before Bragg's fall. Reasonable minds could only conclude there was no negligent act or omission on the part of GFS that proximately caused Gerald Bragg to fall.

{¶ 41} Bragg's speculation about the substance that caused his fall directs the finder of fact to consider that Gerald Bragg slipped and fell because of snow or water tracked into the store vestibule from the outside. The existence of tracked-in water or snow raises the issue of the open and obvious doctrine. In Armstrong v. Best Buy Company, Inc. , the Ohio Supreme Court found a premises owner owes no duty to persons entering the premises regarding dangers that open and obvious. 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, paragraph 5 of the syllabus, citing Sidle v. Humphrey , 13 Ohio St.2d 45, 233 N.E.2d 589 (1968), paragraph 1 of the syllabus by the court. The rationale of the open and obvious doctrine is that the open and obvious nature of the hazard itself serves as a warning, so that owners reasonably may expect their invitees to discover the hazard and take appropriate measures to protect themselves against it. Simmers v. Bentley Constr. Co. , 64 Ohio St.3d 642, 644, 597 N.E.2d 504 (1992).

{¶ 42} We note the axiom that snow and ice are part of wintertime life in Ohio. Boushack v. Grisez Invest., L.P. , 2016-Ohio-355, 58 N.E.3d 528, ¶ 19 (5th Dist.) citing Mt. Vernon v. Young , 5th Dist. Knox No. 09 CA 30, 2010-Ohio-2501, 2010 WL 2225581, ¶ 17, citing Lopatkovich v. Tiffin , 28 Ohio St.3d 204, 503 N.E.2d 154 (1986). Various "Ohio courts[,] have held that tracked in water or snow near the entrance of a building constitutes an open and obvious condition for which liability does not attach." Pesci v. William Miller & Assoc. , 10th Dist. Franklin No. 10AP-800, 2011-Ohio-6290, 2011 WL 6147024, ¶ 16 ; see Hicks v. Kroger Co., 5th Dist. No. 96 CA 54, 1996 WL 753187 (Dec. 10, 1996) (tracing of wetness from the entrance door area to the approximate location of the fall and slip and the plaintiff's general conclusion that the substance he slipped on was water or water from ice precluded liability); Blair v. Vandalia United Methodist Church , 2nd Dist. No. 24082, 2011-Ohio-873, 2011 WL 686413, ¶ 43 (defendant had no duty to warn of an area just inside the entrance that became wet due to tracked in water because the water was an open and obvious condition); Towns v. WEA Midway, LLC , 9th Dist. No. 06CA009013, 2007-Ohio-5121, 2007 WL 2809921, ¶ 14 ("appellant knew it had been raining when she entered the mall and presumptively knew as a result of the rain that the floor might be wet and slippery"); Lupica v. Kroger Co. , 3rd Dist. No. 9-91-48, 1992 WL 113962 (May 29, 1992) (tracked in water near the store's entrance which causes a patron to slip "will not give rise to a cause of action against the owner or lessee of the store").

{¶ 43} The Tenth District Court of Appeals in Martin v. Giant Eagle, Inc. , 10th Dist. Franklin No. 13AP-809, 2014-Ohio-2657, 2014 WL 2809258, ¶¶ 22-23, summarized the open and obvious nature of tracked-in water and snow:

Tracked in water "is a condition created by inclement weather and everyone should be aware of the conditions." Boston v. A & B Sales, Inc. , 7th Dist. No. 11 BE 2, 2011-Ohio-6427 [2011 WL 6288053], ¶ 41, citing Boles v. Montgomery Ward & Co. , 153 Ohio St. 381, 92 N.E.2d 9 (1950). "The Supreme Court of Ohio has held that, '[o]rdinarily, no liability attaches to a store owner or operator for injury to a patron who slips and falls on the store floor which has become wet and slippery by reason of water and slush tracked in from the outside by other patrons.' " Pesci at ¶ 15, quoting Boles at paragraph two of the syllabus. "Everybody knows that the hallways between the outside doors of * * * buildings and the elevators or business counters inside the building during a continued rainstorm are tracked all over by the wet feet of people coming from the wet sidewalks, and are thereby rendered more slippery than they otherwise would be." S.S. Kresge Co. v. Fader , 116 Ohio St. 718, 723-24, 158 N.E. 174 [ (1927) ]. "[I]n light of weather conditions, plaintiff 'should have been aware or anticipated the presence of water on the floor inside the mall because on a rainy day, one can expect to find water on the floor in such heavily trafficked areas.' " Id. , quoting Johnson v. Serv. Ctr. Invest. Trust , 8th Dist. No. 75256 [1999 WL 1087499] (Dec. 2, 1999)."[S]tore owners have no duty to protect its patrons from tracked-in water from snow or rain near the entrance to the stores." Middleton v. Meijer, Inc. , 2d Dist. No. 23789, 2010-Ohio-3244 [2010 WL 2706303], ¶ 17.

{¶ 44} In the present case, Gerald Bragg testifies in his deposition that the GFS parking lot was wet because it snowed earlier and the snow had melted. (T. 25). He stated the snow could have been tracked into the store from a cart or Gerald's feet could have been wet because the parking lot was wet. (T. 34). In support of its motion for summary judgment, GFS also submitted a video recording from the store security camera. It recorded Bragg's fall in the store vestibule. The video shows the entrance to GFS. After walking through the sliding entrance doors, the video shows Bragg stepping immediately onto a black floor mat. Bragg described the black floor mat as a rubber mat. (T. 31). He then steps to his left, off the mat onto a gray floor, which Bragg described as "gray vinyl-covered floor that has like half-dollar knobs on it." (T. 25). The video next shows Bragg reaching for a shopping cart, his right foot slips, and Bragg falls.

{¶ 45} Bragg was aware the GFS parking lot was wet due to the recent snow event. He speculated he could have slipped in the entrance of the store on water tracked in by shopping carts or from his feet. Water from snow or ice is an open and obvious condition for which no duty to warn applies to GFS.

{¶ 46} For these reasons, we find no error for the trial court to grant summary judgment in favor of GFS. The Braggs' second Assignment of Error is overruled.

CONCLUSION

{¶ 47} The judgment of the Stark County Court of Common Pleas is affirmed.

Hoffman, P.J. and Baldwin, J., concur.


author: CARR, Judge.

text:
    Shane LUCAS, Appellee v. FORD MOTOR COMPANY, Appellant
    No. 28622
    Court of Appeals of Ohio, Ninth District, Summit County.
    Dated: September 19, 2018
    JEREMIAH J. WOOD, Attorney at Law, Columbus, for Appellant.
    PAUL D. HUDSON, Attorney at Law, for Appellant.
    THOMAS E. CAFFERTY, Attorney at Law, Toledo, for Appellee.
    DECISION AND JOURNAL ENTRY
   CARR, Judge.

{¶ 1} Defendant-Appellant Ford Motor Company ("Ford") appeals from the judgment of the Summit County Court of Common Pleas. This Court reverses.

I.

{¶ 2} In 2014, Plaintiff-Appellee Shane Lucas purchased a new 2013 Ford truck from a Ford dealership for almost $50,000. The purchase agreement included an arbitration clause. Shortly after purchasing the vehicle, Mr. Lucas began experiencing problems with it. Mr. Lucas's initial complaints included problems with the voice sync system, the rear power window, and the windshield wipers. The vehicle was repaired at a Ford dealership but Mr. Lucas continued to experience multiple different problems with the vehicle over the next several months. Mr. Lucas reported repeated problems with the sync system, problems with the air conditioning system in the seats, problems with the optional manual transmission, as well as, on one occasion, a problem with the power suddenly shutting down on the dashboard while he was driving.

{¶ 3} While Mr. Lucas was experiencing intermittent issues with the vehicle, he purchased and installed several aftermarket accessories on his vehicle. These accessories were not installed at a Ford dealership. Mr. Lucas spent over $9,000 on the accessories.

{¶ 4} Ultimately, Mr. Lucas retained counsel and filed a claim with the Better Business Bureau against Ford. After Mr. Lucas declined a settlement proposed by Ford, the matter proceeded to arbitration through the Better Business Bureau Auto Line ("the BBB"). The agreement to arbitrate indicated that the decision of the arbitrator would be in accordance with the BBB arbitration rules and the applicable manufacturer's Program Summary. In addition, the agreement stated that "[a]ll remedies will fall within the confines of the applicable manufacturer's Program Summary unless additional remedies are noted below." The agreement listed several vehicle problems that the parties agreed to submit to arbitration and reflected that Mr. Lucas sought to have Ford repurchase the vehicle and Ford sought a denial of Mr. Lucas's claim. At the bottom of the page, there is a section which provides space for the manufacturer to extend authority to the arbitrator to provide additional relief. On one copy of the agreement, in that space, there is a handwritten notation that states "Customer also requests reimbursement for accessories installed on the vehicle and reimbursement of attorney fees and costs to assist him with his claim."

{¶ 5} The applicable Program Summary indicated that eligible claims "must be claims based on a defect in the vehicle's factory-supplied material or workmanship covered by the applicable Ford U.S. New Vehicle Limited Warranty." Claims that were not covered included claims that were not covered by the Ford New Vehicle Limited Warranty. The available remedies included repairs, an extended service plan, reimbursement for repairs paid by the customer, repurchase, or replacement. With respect to repurchase, the Program Summary indicated that the arbitrator could award repurchase only if the arbitrator finds the claims meet all the elements of Ohio Lemon Law or meet certain other conditions. If repurchase was awarded, the Program Summary listed what Ford would be responsible for refunding the customer.

{¶ 6} The arbitrator issued a decision finding in favor of Mr. Lucas. The arbitrator found that a repurchase decision was a fair resolution of the dispute. The arbitrator found that Mr. Lucas "met the requirements of the Ohio Lemon Law for Repurchase of his vehicle without any deductions for use." The arbitrator's decision provided that the manufacturer would provide the customer with a statement of all amounts that would be paid for under the decision and if the customer disputed the amount, no later than 10 days later, the customer could submit a request to the BBB asking the arbitrator to resolve the dispute. It also provided that, at the time of repurchase, the customer must turn over the vehicle in a similar condition to the condition it was at the time of the hearing. At the end of the portion of the decision outlining the arbitrator's reasoning, the arbitrator noted Mr. Lucas's concerns with respect to the accessories and attorney fees:

The arbitrator acknowledges the consumer's request for the manufacturer to reimburse him for the cost of certain after market items previously mentioned along with attorney fees incurred. Neither the Ford Program Summary nor the Ohio Lemon Law utilized by the BBB Auto Line cover costs to repurchase after market items unrelated to the claimed defects nor are attorney fees applicable. Consumer must address those claims for redress under separate warranty claims elsewhere.

{¶ 7} Mr. Lucas was also sent a letter which explained that he had 14 days to either accept or reject the decision. Mr. Lucas accepted the decision and acknowledged that he would "be legally bound, which means [he] give[s] up any right to sue the business in court on any claim that has been resolved at the arbitration hearing, unless the business fails to perform according to the Arbitrator's decision or unless otherwise provided by state or federal law."

{¶ 8} In January 2015, Mr. Lucas filed an application for an order confirming the arbitration award and a complaint for additional damages. In the complaint, Mr. Lucas alleged that Ford had not performed under the arbitration decision and alleged one count alleging a violation of the Magnuson-Moss Warranty Act. Therein, Mr. Lucas alleged that Ford was unable to conform his truck to the written warranty or service contract and that he was not fully compensated for his damages in arbitration. Mr. Lucas sought recovery of costs and expenses, including attorney fees incurred in the arbitration and in pursuing the instant suit, and reimbursement for the aftermarket accessories that he had installed on the vehicle.

{¶ 9} Ford filed a motion to dismiss arguing that pursuant to Maitland v. Ford Motor Co., 103 Ohio St.3d 463, 2004-Ohio-5717, 816 N.E.2d 1061, Mr. Lucas's acceptance of the arbitration award barred him from pursuing additional relief. The trial court denied the motion stating that the current claim was not made pursuant to Ohio Lemon Law and therefore arbitration did not bar Mr. Lucas's claim. Thereafter, Ford answered the complaint and asserted as an affirmative defense that the complaint failed to state a claim upon which relief can be granted.

{¶ 10} Subsequently, both Ford and Mr. Lucas filed motions for summary judgment. In his affidavit in support of his motion, Mr. Lucas acknowledged that Ford performed under the arbitration agreement. In its motion, Ford again asserted that Maitland barred Mr. Lucas's claim and additionally asserted that Mr. Lucas had elected rescission as his remedy and thus could not pursue additional remedies. The motion was denied.

{¶ 11} The matter proceeded to a bench trial before a magistrate. At the close of Mr. Lucas's case Ford moved for a directed verdict on several bases, including that Mr. Lucas's acceptance of the arbitration award barred his claim under Maitland and that Mr. Lucas had elected his remedy. The motion was denied. Ford later renewed the motion, which was again denied. Ultimately, the magistrate issued a decision finding in favor of Mr. Lucas and awarded him $13,449.50, consisting of $9,149.50 for the accessories and $4,300 in attorney fees, as the prevailing party. Ford filed objections to the magistrate's decision asserting that the magistrate erred by failing to find Mr. Lucas's claim barred by his acceptance of the arbitration award under Maitland and by failing to find that Mr. Lucas was entitled to only one recovery. Additionally, Ford argued that Mr. Lucas failed to submit sufficient evidence to establish the reasonableness of the attorney fees.

{¶ 12} The trial court overruled Ford's first two objections but sustained Ford's objections concerning attorney fees and remanded the matter for further hearing. Following a hearing, the magistrate again awarded Mr. Lucas $4,300 in attorney fees, concluding they were reasonably incurred in the prosecution of Mr. Lucas's Magnuson-Moss Warranty Act claim. No objections were filed and the trial court adopted the magistrate's decision and confirmed the arbitration award.

{¶ 13} Ford has appealed, raising two assignments of error for our review.

II.

ASSIGNMENT OF ERROR I

PLAINTIFF'S ACCEPTANCE OF THE ARBITRATION AWARD BARS HIS CLAIMS IN THIS LITIGATION.

{¶ 14} Ford argues that the trial court erred in failing to conclude that Mr. Lucas's claim was barred by his acceptance of the arbitration award given the law set forth in Maitland . Additionally, Ford argues that Mr. Lucas's claim was barred because Mr. Lucas, by accepting the arbitration award, had elected the remedy of rescission.

{¶ 15} Because we conclude Ford's first argument is dispositive, we decline to address Ford's election of remedies argument. Ford points out that it argued that Maitland and Mr. Lucas's acceptance of the arbitration award barred his claim in its motion to dismiss, its motion for summary judgment, and in its motion for directed verdict. We note that Ford additionally raised the argument in its objections to the magistrate's decision and we limit our discussion to whether the trial court erred in overruling Ford's objections to the magistrate's decision.

{¶ 16} {¶ 10} "[W]e generally review a trial court's action on a magistrate's decision for an abuse of discretion, but do so with reference to the nature of the underlying matter." (Internal quotations and citations omitted.) Harrison v. Lewis , 9th Dist. Summit No. 28114, 2017-Ohio-275, 2017 WL 389339, ¶ 40. "If * * * the issue implicates an issue of law, this Court reviews those matters de novo." Wintrow v. Baxter-Wintrow , 9th Dist. Summit No. 26439, 2013-Ohio-919, 2013 WL 989380, ¶ 11.

{¶ 17} The parties appear to agree that the arbitration that took place was part of the informal dispute-resolution process discussed in R.C. 1345.77. We note that the BBB materials in the record do not require that conclusion. However, in light of the parties' apparent agreement, we will proceed under the notion that the arbitration that took place was part of the dispute-resolution process provided for in the statute.

{¶ 18} The Ohio Lemon Law and the associated dispute-resolution process are discussed in Maitland . The Supreme Court noted that, Ohio Lemon Law "places a clear duty upon a manufacturer or its agents to make any necessary repairs so that a new vehicle conforms to the applicable express warranties even after the warranty has expired. R.C. 1345.72(A). If the manufacturer or seller cannot make the vehicle conform after a reasonable number of attempts, then the consumer may elect to either replace the vehicle or be refunded its full purchase price." Maitland , 103 Ohio St.3d 463, 2004-Ohio-5717, 816 N.E.2d 1061, at ¶ 13. "The Lemon Law provides the purchaser with a statutory cause of action if the manufacturer does not comply with R.C. 1345.72. However, the consumer must first resort to an informal dispute-resolution process if one exists. R.C. 1345.77." Id. at ¶ 14.

{¶ 19} "The [arbitrator's] decision is binding on the manufacturer, but not on the consumer. The consumer may reject the decision and pursue a civil action under R.C. 1345.75. However, if the consumer accepts the board's decision, the dispute is considered settled once the manufacturer performs." (Internal citations omitted.) Id. at ¶ 17. Thus, once the dispute is settled, "[t]he previously existing claim is extinguished by the compromise and settlement and, as a result, any subsequent litigation based upon it is barred." Id. at ¶ 20.

{¶ 20} Here, there is no dispute that Mr. Lucas accepted the arbitrator's decision and signed the form acknowledging that, by accepting the decision, he would "be legally bound [by the decision, which means [he would] give up any right to sue the business in court on any claim that has been resolved at the arbitration hearing, unless the business fails to perform according the Arbitrator's decision or unless otherwise provided by state or federal law." In addition, at trial, Mr. Lucas acknowledged that he had received a full refund of the purchase price of the vehicle from Ford.

{¶ 21} Nonetheless, Mr. Lucas argues that his Magnuson-Moss Warranty Act claim is not barred because that claim was not resolved in the arbitration. He maintains there was no agreement to arbitrate the issue of his recovery of the value of aftermarket accessories and attorney fees. In support of his argument, he points out that the arbitrator even noted that he could not recover damages for the aftermarket accessories and attorney fees because neither the Ohio Lemon Law utilized by the BBB nor the Ford Program Summary covered those costs.

{¶ 22} Based on the information in the record, the only claims that could be arbitrated in the BBB program at issue in this case were claims "based on a defect in the vehicle's factory-supplied material or workmanship covered by the applicable Ford U.S. New Vehicle Limited Warranty." In other words, the BBB arbitration resolved warranty disputes. Mr. Lucas failed to demonstrate at trial that his current warranty dispute was not resolved when he accepted the arbitration decision and Ford performed under the decision.

{¶ 23} In his complaint containing the Magnuson-Moss Warranty Act claim, Mr. Lucas alleged that Ford failed to comply with the warranties for the truck and he was not fully compensated for his damages in arbitration. He sought those damages (attorney fees and the value of aftermarket accessories) that he could not recover in arbitration. At trial, Mr. Lucas testified concerning the various repair orders for his truck. He agreed that the portion of the agreement to arbitrate which listed the particular issues that were to be arbitrated included all of his complaints with the vehicle aside from the additional damages due to the installation of the aftermarket accessories. Thus, essentially Mr. Lucas acknowledged at trial that his current Magnuson-Moss Warranty Act claim was premised upon issues that were already arbitrated, as it was the defects in the truck that would have allowed Mr. Lucas any recovery. See 15 U.S.C. 2310(d).

{¶ 24} The claim Mr. Lucas arbitrated and the claim he has raised in the instant suit are both warranty claims involving the same truck. Mr. Lucas has not demonstrated that the substance of his current warranty claim was not the same as the substance of the warranty claim resolved in the arbitration. Instead, his testimony tends to prove just the opposite. Accordingly, we can only conclude that the arbitration decision that Mr. Lucas accepted resolved his warranty claims. See Maitland , 103 Ohio St.3d 463, 2004-Ohio-5717, 816 N.E.2d 1061, at ¶ 20. Thus, the trial court did err in overruling Ford's objection to the magistrate's decision as Mr. Lucas's acceptance of the arbitration decision and Ford's subsequent performance pursuant to the decision did bar his current suit.

{¶ 25} We note that Mr. Lucas had the option to reject the arbitrator's decision, thereby allowing him to file any warranty claims he had and to pursue the additional remedies that are authorized outside the informal dispute-resolution mechanism. See id. at ¶ 17 ; Ohio Adm.Code 109:4-4-04(C)(7)(a). Mr. Lucas instead chose to accept the arbitrator's decision knowing that his damages would not include the value of aftermarket accessories or attorney fees.

{¶ 26} Ford's first assignment of error is sustained. The trial court is ordered to enter judgment in favor of Ford.

ASSIGNMENT OF ERROR II

BECAUSE PLAINTIFF IS BARRED FROM BRINGING HIS SUBSEQUENT LAWSUIT, HE CANNOT BE DEEMED THE PREVAILING PARTY AND CANNOT BE AWARDED ATTORNEY'S FEES.

{¶ 27} Ford argues in its second assignment of error that the trial court erred in awarding Mr. Lucas attorney fees because Mr. Lucas was not entitled to recover under his Magnuson-Moss Warranty Act claim. Because we determined in the first assignment of error that Mr. Lucas's Magnuson-Moss Warranty Act claim was barred, we inherently also concluded that Mr. Lucas could not recover any damages or attorney fees under that claim. Thus, our resolution of Ford's first assignment of error renders this assignment of error moot. See App.R. 12(A)(1)(c).

III.

{¶ 28} Ford's first assignment of error is sustained and its second assignment of error is moot. The judgment of the Summit County Court of Common Pleas is reversed and the matter is remanded for the trial court to enter judgment in favor of Ford.

Judgment reversed, and cause remanded.

SCHAFER, P.J.

CALLAHAN, J.

CONCUR.

      The BBB materials in the record mention Ohio Lemon Law and the arbitrator's decision reflects that Mr. Lucas's claim met the requirements of Ohio Lemon Law for repurchase of his vehicle. However, the materials also indicate compliance with Ohio Lemon Law is not necessarily a requirement to recovery. Further, the materials do not indicate that the arbitration is conducted as required by the statutes.