The opinion
[Cite as Walker v. Shondrick-Nau, 2014-Ohio-1499.]
STATE OF OHIO, NOBLE COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
JON WALKER, JR., )
)
PLAINTIFF-APPELLEE, )
) CASE NO. 13 NO 402
VS. )
) OPINION
PATRICIA J. SHONDRICK-NAU, )
EXECUTRIX OF THE ESTATE OF JOHN )
R. NOON AND SUCCESSOR TRUSTEE )
OF THE JOHN R. NOON TRUST, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas of Noble County, Ohio
Case No. 212-0098
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee Attorney Kenneth Cardinal
758 N. 15th St.
Sebring, Ohio 44672
Attorney James F. Mathews
400 South Main St.
North Canton, Ohio 44720
For Defendant-Appellant Attorney James Hughes, III
Attorney Matthew Warnock
Attorney Daniel Gerken
100 South Third St.
Columbus, Ohio 43215
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Dated: April 3, 2014
[Cite as Walker v. Shondrick-Nau, 2014-Ohio-1499.]
DONOFRIO, J.
{¶1} Defendant-appellant, Patricia J. Shondrick-Nau, Executrix of the Estate
of John R. Noon and Successor Trustee of the John R. Noon Trust, appeals from a
Noble County Common Pleas Court judgment granting summary judgment in favor of
plaintiff-appellee, Jon Walker, Jr., on appellee’s claim to quiet title as to the mineral
estate (specifically oil and gas interests) underlying a tract of land in Noble County.
{¶2} John Noon purchased the disputed property, located in Enoch
Township, in 1964. On July 26, 1965, Noon severed the mineral rights and created a
separate mineral estate by reserving the mineral rights to himself when he sold the
surface rights on that date.
{¶3} In 1970, the surface rights to the property were sold twice. In both of
the 1970 conveyances, the deeds included the mineral rights reservation and
referenced the volume and page number where the mineral rights reservation was
recorded. In 1977, the surface rights were sold again. And again the deed included
the mineral rights reservation and referenced the volume and page number where
the mineral rights reservation was recorded.
{¶4} Appellee purchased the subject property in 2009. The property is
described in two deeds. The first tract of land is 37.042 acres and the second tract is
5.186 acres.
{¶5} On December 2, 2011, appellee sent a notice of abandonment of
mineral interest to Noon.
{¶6} On January 10, 2012, Noon filed an affidavit and claim to preserve
mineral interest.
{¶7} On April 27, 2012, appellee filed a complaint for declaratory judgment
and to quiet title. He requested that the trial court rule that he is the lawful owner of
the mineral rights. Appellee asserted that the mineral rights merged with the surface
estate no later than March 22, 1992, by way of the prior version of R.C. 5301.56 (the
Ohio Dormant Mineral Act), which was in effect from March 22, 1989, until June 30,
2006. He also claimed Noon abandoned any interest in the mineral rights when he
failed to preserve them from expiring.
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{¶8} Noon filed a motion for summary judgment. He alleged that the filing of
a mineral preservation notice pursuant to R.C. 5301.56(H) preserved the severed
mineral interest and R.C. 5301.56(D) indefinitely preserves a severed mineral
interest. On these bases, Noon claimed he was entitled to summary judgment on
appellee’s claims.
{¶9} Appellee then filed a cross-motion for summary judgment. He asserted
that because the transactions relied upon by Noon did not represent title transactions
in the mineral estate, those transactions did not operate as a savings event under
R.C. 5301.56.
{¶10} The trial court found that no facts were in dispute. The court framed the
question before it as, “do the surface transfers in 1970 and 1977 count as ‘title
transactions’?” The court answered in the negative. The court found that although
the transactions were within the 20-year period prior to March 22, 1989, they did not
affect an interest in land as contemplated by R.C. 5301.56(F). The court further
found that any discussion of the current version of R.C. 5301.56, effective June 30,
2006, was moot because as of June 30, 2006, any interest Noon had in the mineral
rights had already been abandoned. Therefore, the trial court granted appellee’s
motion for summary judgment and denied Noon’s motion for summary judgment. It
went on to declare that appellee is the true and rightful owner of the oil and gas
underlying the subject property and that Noon has no interest in the subject oil and
gas.
{¶11} Noon filed a timely notice of appeal on April 17, 2013. Noon passed
away after the filing of this appeal. His daughter, Shondrick-Nau, in her capacity as
the executrix of Noon’s estate and successor trustee of Noon’s trust, was substituted
as the appellant in this case.
{¶12} Appellant raises two assignments of error. The assignments of error
share a common basis in law and fact. Appellant then raises three distinct issues for
review. For ease of discussion, we will treat each issue for review separately.
{¶13} Appellant’s assignments of error state:
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THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT FOR PLAINTIFF-APPELLEE.
THE TRIAL COURT ERRED IN NOT GRANTING SUMMARY
JUDGMENT IN FAVOR OF DEFENDANT-NOON.
{¶14} In reviewing a trial court's decision on a summary judgment motion,
appellate courts apply a de novo standard of review. Cole v. Am. Industries &
Resources Corp., 128 Ohio App.3d 546, 552, 715 N.E.2d 1179 (7th Dist.1998).
Thus, we shall apply the same test as the trial court in determining whether summary
judgment was proper. Civ.R. 56(C) provides that the trial court shall render summary
judgment if no genuine issue of material fact exists and when construing the
evidence most strongly in favor of the nonmoving party, reasonable minds can only
conclude that the moving party is entitled to judgment as a matter of law. State ex
rel. Parsons v. Flemming, 68 Ohio St.3d 509, 511, 628 N.E.2d 1377 (1994). A
“material fact” depends on the substantive law of the claim being litigated. Hoyt, Inc.
v. Gordon & Assoc., Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th
Dist.1995), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986).
{¶15} This case involves the application of the current and prior versions of
R.C. 5301.56, known as Ohio’s Dormant Mineral Act.
{¶16} The prior version of R.C. 5301.56 was enacted on March 22, 1989.
The 1989 version of R.C. 5301.56 provided, in pertinent part:
(B)(1) Any 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, if none of
the following applies:
***
(c) Within the preceding twenty years, one or more of the
following has occurred:
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(i) The mineral interest has been the subject of a title transaction
that had been filed or recorded in the office of the county recorder of the
county in which the lands are located[.]
***
(2) A mineral interest shall not be deemed abandoned under
division (B)(1) of this section because none of the circumstances
described in that division apply, until three years from the effective date
of this section.
{¶17} The current version of R.C. 5301.56 became effective on June 30,
2006. The most substantial change to the statute was the addition of the notice
requirements giving the owner of the abandoned mineral interest the opportunity to
reclaim his or her interest. R.C. 5301.56 now provides, in pertinent part:
(B) Any 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 mineral interest is in coal, or in mining or other rights
pertinent to or exercisable in connection with an interest in coal * * *.
(2) The mineral interest is held by the United States, this state, or
any political subdivision, body politic, or agency of the United States or
this state * * * .
(3) Within the twenty years immediately preceding the date on
which notice is served or published under division (E) of this section,
one or more of the following has occurred:
(a) 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.
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(b) There has been actual production or withdrawal of minerals
by the holder * * *.
(c) The mineral interest has been used in underground gas
storage operations by the holder.
(d) A drilling or mining permit has been issued to the holder, * * *.
(e) A claim to preserve the mineral interest has been filed in
accordance with division (C) of this section.
(f) In the case of a separated mineral interest, a separately listed
tax parcel number has been created for the mineral interest in the
county auditor's tax list and the county treasurer's duplicate tax list in
the county in which the lands are located.
***
(E) Before a mineral interest becomes vested under division (B)
of this section in the owner of the surface of the lands subject to the
interest, the owner of the surface of the lands subject to the interest
shall do both of the following:
(1) 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. 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. The notice shall contain all of the information specified in
division (F) of this section.
(2) At least thirty, but not later than sixty days after the date on
which the notice required under division (E)(1) of this section is served
or published, as applicable, file in the office of the county recorder of
each county in which the surface of the land that is subject to the
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interest is located an affidavit of abandonment that contains all of the
information specified in division (G) of this section.
{¶18} The definition of a “title transaction,” which is defined in R.C. 5301.47,
did not change between the two versions of R.C. 5301.56. A “title transaction” is “any
transaction affecting title to any interest in land, including title by will or descent, title
by tax deed, or by trustee's, assignee's, guardian's, executor's, administrator's, or
sheriff's deed, or decree of any court, as well as warranty deed, quit claim deed, or
mortgage.” R.C. 5301.47(F).
{¶19} With these statutes in mind, we turn now to appellant’s issues for
review.
{¶20} Appellant’s first issue for review asserts:
A title transaction that transfers the ownership of the surface
rights and clearly references and reserves the mineral interest
preserves a mineral interest under R.C. 5301.56(C).
{¶21} Appellant contends here that the mineral rights at issue were the
subject of a title transaction during the applicable 20-year look-back period. Because
the mineral rights were the subject of a title transfer during the 20-year period that
was recorded in the county recorder’s office, appellant claims the rights were not
subject to forfeiture. Appellant points out that this argument is valid under both the
prior and the current versions of R.C. 5301.56.
{¶22} Appellant argues that in reaching its decision, the trial court effectively
added the word “only” to the beginning of R.C. 5301.56(B)(3)(a) in finding the interest
to be conveyed must be the mineral interest itself and nothing else. Appellant states
there is no dispute that there was a clear exception of the mineral interest in both the
1970 deed and the 1977 deed. She points out that all of the deeds recite Noon’s
mineral interest reservation, state the volume and page numbers on which the
mineral estate reservation appears in the public record, and refer to Noon by name.
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{¶23} Appellant goes on to argue that the “title transaction” savings event
must be analyzed in the broader context of Ohio’s Marketable Title Act (R.C. 5301.47
to R.C. 5301.56). She notes that a “mineral interest” is “a fee interest in at least one
mineral regardless of how the interest is created and of the form of the interest.” R.C.
5301.56(A)(3). She further notes that a “mineral” includes oil and gas. R.C.
5301.56(A)(4). She then points to the definition of “title transaction,” which includes
“any transaction affecting title to any interest in land.” R.C. 5301.47(F). Appellant
argues that when these definitions are read together, it becomes clear that the
savings event occurs when the mineral interest has been the subject of any title
transaction. She contends there is no requirement that the mineral interest is actually
transferred.
{¶24} Appellant also contends that the statute’s legislative history supports
her interpretation. Appellant argues the Legislature’s amendment to the language of
the savings event from situations where the “interest has been conveyed” to
situations where the “mineral interest had been the subject of a title transaction”
evidences the Legislature’s deliberate decision to eliminate the requirement that the
mineral interest itself be conveyed or transferred in order to qualify as a savings
event.
{¶25} In Dodd v. Croskey, 7th Dist. No. 12 HA 6, 2013-Ohio-4257
(discretionary appeal accepted by Ohio Supreme Court on a different issue, cross-
appeal on this issue not accepted, 2013-1730), we examined whether an oil and gas
interest was “the subject of” a title transaction. In 2009, when the appellants acquired
the surface rights to the disputed property, the deed that conveyed the surface rights
included a reservation of the oil and gas interest to the Porters, which included the
date it had been filed (May 27, 1947) and the volume and page numbers where it
could be found in the Recorder’s Office. The trial court found that R.C.
5301.56(B)(3)(a) applied. It concluded that the mineral interest was the “subject of”
the title transaction and that it had been filed within 20 years immediately preceding
the publishing of notice under R.C. 5301.56(E).
-8-
{¶26} On appeal, we noted that the issue to be decided was whether the oil
and gas interest was the “subject of” the title transaction. Id. at ¶41. We noted that
the 2009 deed conveying the surface rights was a “title transaction” as defined by
R.C. 5301.47(F). Id. at ¶43. We also noted that other than a Fifth District case,
which we found unhelpful, there was no case law in Ohio discussing what “subject of
a title transaction” means. Id. at ¶48. And we pointed out that “subject of” is not
defined in the statute. Id. Thus, we looked to the phrase’s ordinary meaning and
construed it according to common usage. Id. We explained:
The common definition of the word “subject” is topic of interest,
primary theme or basis for action. Webster’s II New Riverside
Dictionary 11553 (1984). Under this definition the mineral interests are
not the “subject of” the title transaction. 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. Here, the mineral interest was not being conveyed or retained
by Coffelt, the party that sold the property to appellants.
Therefore, we disagree with the trial court’s conclusion that oil
and gas interests were the “subject of” the 2009 title transaction.
Instead we specifically find that they were not the “subject of” the 2009
title transaction.
Id. at ¶¶48-49.
{¶27} Applying this court’s reasoning, that in order for the mineral interest to
be the “subject of” the title transaction the grantor must be conveying or retaining that
interest, to the case at bar leads to the conclusion that the mere mention of the
mineral interest reservation in the 1970 and 1977 deeds did not make the mineral
interest “the subject of” the title transactions. Instead, “the subject of” those title
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transactions was the conveyance of the surface estate. Thus, the 1970 and 1977
deeds were not savings events under either the 1989 version or the current version
of R.C. 5301.56.
{¶28} Accordingly, appellant’s first issue for review is without merit.
{¶29} Appellant’s second issue for review asserts:
The trial court erred in applying the 1989 version of R.C. 5301.56
and not the current version of the statute.
{¶30} In this issue for review, appellant contends the trial court incorrectly
applied the 1989 version of R.C. 5301.56 instead of the 2006 version.
{¶31} Firstly, appellant points to the general rule by the United States
Supreme Court that a court should apply the law in effect at the time it renders its
decision, even when that law was enacted after the events that gave rise to the
lawsuit. Citing, Landgraf v. USI Film Products, 511 U.S. 244, 273, 114 S.Ct. 1483
(1994). Appellant points out that neither appellee nor his predecessors in interest
sought to quiet title to the mineral rights between 1989 and 2006, when the 1989
version of the statute was in effect. When the complaint was filed in this case,
appellant points out, the 2006 version of the statute had been in effect for
approximately six years.
{¶32} Secondly, appellant asserts the trial court should have applied the 2006
version of the statute because it was the law in effect during the events that gave rise
to this suit. She points out that appellee did not purchase the disputed property until
2009, three years after the 2006 version of the statute took effect. Therefore,
appellant notes, appellee did not own the surface rights during the time the 1989
version of the statute was in effect.
{¶33} Thirdly, appellant argues that she must prevail under the 2006 version
of the statute because Noon filed a timely preservation of mineral interest. She
points out that R.C. 5301.56(E) now requires a surface owner to serve by certified
mail to each holder of the mineral rights the surface owner’s intent to declare the
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mineral interest abandoned. She further notes the statute then provides that the
owner of the mineral interest can file a claim to preserve the mineral interests within
60 days after the notice.
{¶34} Appellant asserts that appellee sent his notice of abandonment of
mineral interest on November 27, 2011. Appellant states that Noon then filed a
preservation of mineral interest on January 10, 2012, meeting the statutory
requirements and preventing the interest from being divested.
{¶35} No Ohio appellate court or the Ohio Supreme Court has yet to address
the issue of when to apply the 1989 version of R.C. 5301.56 and when to apply the
2006 version.
{¶36} The Ohio Revised Code offers some general guidance in examining
this issue. “A statute is presumed to be prospective in its operation unless expressly
made retrospective.” R.C. 1.48. The amendment or repeal of a statute does not
affect the prior operation of the statute or affect “any validation, cure, right, privilege,
obligation, or liability previously acquired, accrued, accorded, or incurred thereunder.”
R.C. 1.58(A)(1)(2).
{¶37} There is no language in the 2006 version of R.C. 5301.56 to suggest
that it is to be applied retroactively. Thus, it is only to apply prospectively.
Additionally, although R.C. 5301.56 was amended in 2006, this amendment would
not have affected any “validation, cure, right, privilege, obligation, or liability
previously acquired.”
{¶38} Under the terms of the 1989 version of R.C. 5301.56, any mineral
interest held by anyone other than the surface owner “shall be deemed abandoned
and vested” in the surface owner if none of the stated circumstances applied. Former
R.C. 5301.56(B)(1). The stated circumstances were: (1) the mineral interest was in
coal; (2) the mineral interest was held by the government; and (3) within the
preceding 20 years, one or more of the stated events occurred, which included that
the mineral interest has been the subject of a title transaction. Former R.C.
5301.56(B)(1). The 1989 version became effective on March 22, 1989. It further
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provided that a mineral interest would not be deemed abandoned under division
(B)(1) because none of the circumstances described in that division applied, until
three years from the effective date of this section. Former R.C. 5301.56(B)(2). Thus,
it provided a three-year grace period until March 22, 1992.
{¶39} Given the effective dates of the 1989 version of R.C. 5301.56, on March
22, 1992, Noon’s mineral interest was “deemed abandoned and vested” in the
surface owner at the time. As discussed in appellant’s first issue for review, Noon’s
mineral interest was not the subject of any title transactions that would trigger the title
transaction event. And appellant has not alleged any other savings events.
{¶40} The Ohio Supreme Court explained what it means for someone to have
a “vested” interest in something in State ex rel. Jordan v. Indus. Comm., 120 Ohio
St.3d 412, 2008-Ohio-6137, 900 N.E.2d 150, ¶9:
A “vested right” can “be created by common law or statute and is
generally understood to be the power to lawfully do certain actions or
possess certain things; in essence, it is a property right.” Washington
Cty. Taxpayers Assn. v. Peppel (1992), 78 Ohio App.3d 146, 155, 604
N.E.2d 181. It has been described as a right “which it is proper for the
state to recognize and protect, and which an individual cannot be
deprived of arbitrarily without injustice.” State v. Muqdady (2000), 110
Ohio Misc.2d 51, 55, 744 N.E.2d 278. A vested right is one that “ ‘so
completely and definitely belongs to a person that it cannot be impaired
or taken away without the person's consent.’ ” Harden v. Ohio Atty.
Gen., 101 Ohio St.3d 137, 2004-Ohio-382, 802 N.E.2d 1112, ¶9,
quoting Black's Law Dictionary (7th Ed.1999) 1324. A right also cannot
be characterized as vested “unless it constitutes more than a ‘mere
expectation or interest based upon an anticipated continuance of
existing laws.’ ” Roberts v. Treasurer (2001), 147 Ohio App.3d 403,
411, 770 N.E.2d 1085, quoting In re Emery (1978), 59 Ohio App.2d 7,
11, 13 O.O.3d 44, 391 N.E.2d 746.
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{¶41} When the 2006 version of R.C. 5301.56 was enacted, Noon’s mineral
interest had already been abandoned and the mineral interest had been vested with
the surface owner for 14 years. Once the mineral interest vested in the surface
owner, it was reunited with the surface estate. Noon did not have any mineral
interest in the subject property after March 22, 1992, because on that date the
interest automatically vested in the surface owner by operation of the statute. And
once the mineral interest vested in the surface owner, it “completely and definitely”
belonged to the surface owner.
{¶42} Numerous trial courts in our District have likewise found that the 1989
version of R.C. 5301.56 applies to similar actions. See, Walker v. Noon, Noble
County Common Pleas No. 2012-0098 ; Marty v. Dennis, Monroe County Common
Pleas No. 2012-230; Tribbett v. Shepherd, Belmont County Common Pleas No. 12
CV 180.
{¶43} One trial court in our District has found to the contrary. Dahlgren v.
Brown Farm, Carroll County 2013 CVH 274455. The trial court in Dahlgren found no
merit to the “automatic vesting” theory. Instead, it classified the mineral rights under
the 1989 version as “inchoate” rights. By definition, “inchoate” means “not completely
formed or developed yet.” Merriam-Webster Online Dictionary. This definition is in
direct contrast to the definition of “vested” which means that something “so
completely and definitely belongs to a person that it cannot be impaired or taken
away without the person's consent.” Jordan v. Indus. Comm., 120 Ohio St.3d at ¶9,
quoting Harden, 101 Ohio St.3d at ¶9. Thus, the Dahlgren court’s characterization of
the mineral rights under the 1989 version is contrary to the statute itself, which states
that the mineral rights are “vested.”
{¶44} Additionally, trial courts in the Fifth District have likewise found that the
1989 version of the statute applies. See, Wiseman v. Potts, Morgan County
Common Pleas No. 2008CV145 (where the parties agreed the 1989 version applied
notwithstanding the fact it was filed after the 2006 version became effective); Wendt
v. Dickerson, Tuscarawas County Common Pleas No. 2012 CV 02 0135 (prior
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version of the statute applied because the landowner’s rights had vested and could
not be taken away).
{¶45} Further support for this finding is found in Cadles of Grassy Meadows,
II, LLC v. Kistner, 6th Dist. No. L-09-1267, 2010-Ohio-2251. In Kistner, a judgment
was entered in 1987 against the Kistners. The judgment was not fully satisfied and,
pursuant to statute, the judgment became dormant on March 12, 1992. At the time
the judgment became dormant, the prior version of R.C. 2325.18 (effective October
1, 1953, to June 1, 2004) was in effect and provided for a 21-year statute of
limitations for revivor proceedings. In August 2009, Cadles moved the trial court to
revive the judgment. The Kistners opposed the revivor arguing Cadles had
abandoned its rights and because the statute of limitations barred revival. The trial
court found that revival of the judgment was barred because the current version of
R.C. 2325.18(A) provided for a 10-year statute of limitations for revival and more than
17 years had passed since the judgment became dormant. Cadles appealed.
{¶46} On appeal, Cadles argued the trial court erred in applying the current
version of R.C. 2325.18 retroactively. It claimed the right to sue became a vested,
substantial right at the time the judgment became dormant.
{¶47} The Sixth District examined an 1893 Ohio Supreme Court case dealing
with the same issue. It noted that in Bartol v. Eckert, 50 Ohio St. 31, 33 N.E. 294
(1893), the Court held that without an expression of retroactivity, and based on the
rule that amendments do not affect causes already existing, the amended statute
was not applicable and the earlier statute applied. Id. at ¶14. It also stated that the
Bartol Court considered the constitutionality of retroactively applying the statute and
held that no vested right had been taken away or impaired by the statute. Id.
{¶48} The Sixth District noted that when determining whether a statute is to
be applied retroactively the court must conduct a two-part inquiry. Id. at ¶15. First,
there must be a clear, express legislative intent to apply the statute retroactively. Id.
Then, if there is such an intent, the statute must affect only remedial, not substantive,
rights or it will be found to violate Section 28, Article II of the Ohio Constitution. Id.,
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citing State ex rel. Romans v. Elder Beerman Stores Corp., 100 Ohio St.3d 165,
2003-Ohio-5363, 797 N.E.2d 82, ¶11.
{¶49} The court went on to point out that the current version of R.C. 2325.18
did not clearly provide for retroactive application. Id. at ¶17. It found, therefore, the
statute was not intended to apply to dormant judgments that existed prior to the
amendment of the statute. Id. Consequently, the court found that the prior version of
the statute, which provided for a 21-year statute of limitations, controlled. Id.
{¶50} Although dealing with the application of a different statute, Kistner is
helpful in that it found that the prior version of the statute applied, which was in effect
at the time the judgment became dormant, as opposed to the current version of the
statute, which was in effect when the revival claim was filed. And Kistner held that
because the current version of the statute did not specifically provide for retroactive
application, it did not apply to past judgments.
{¶51} Similarly, in the present case, the 2006 version of R.C. 5301.56 does
not specifically provide for retroactive application. Thus, the 1989 version, which was
in effect at the relevant time to render the mineral interest vested in the surface
owner, controls here.
{¶52} Accordingly, appellant’s second issue for review is without merit.
{¶53} Appellant’s third issue for review asserts:
As applied by the trial court, the 1989 version of the Dormant
Minerals Act violates the Ohio Constitution’s proscription on retroactive
legislation.
{¶54} Appellant argues that the retroactive application of the 1989 version of
the statute in this case is unconstitutional. She asserts that any reliance on Texaco
v. Short, 454 U.S. 516, 102 S.Ct. 781 (1982), is misplaced. In Texaco, the United
States Supreme Court upheld the constitutionality of Indiana’s Dormant Mineral
Interests Act. And Noon contends the application of the 1989 version of the statute
violates Article II, Section 28 of the Ohio Constitution, which prohibits the General
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Assembly from passing retroactive laws.
{¶55} Noon failed to raise these constitutional arguments in his complaint or
in his motion for summary judgment in the trial court. In fact, Noon even argued in
his summary judgment motion that under the 1989 version of R.C. 5301.56, his
mineral rights were preserved by three title transactions.
{¶56} The Ohio Supreme Court has held that “[f]ailure to raise at the trial court
level the issue of the constitutionality of a statute or its application, which issue is
apparent at the time of trial, constitutes a waiver of such issue.” State v. Awan, 22
Ohio St.3d 120, 489 N.E.2d 277 (1986), syllabus. However, the Ohio Supreme Court
has also held that the waiver doctrine announced in Awan is discretionary. In re
M.D., 38 Ohio St.3d 149, 527 N.E.2d 286 (1988), syllabus. “Even where waiver is
clear, [a reviewing court may] consider constitutional challenges to the application of
statutes in specific cases of plain error or where the rights and interests involved may
warrant it.” Id.
{¶57} But recognizing plain error in a civil case occurs only in extremely rare
situations “involving exceptional circumstances” where the error “seriously affects the
basic fairness, integrity, or public reputation of the judicial process, thereby
challenging the legitimacy of the underlying judicial process itself.” Goldfuss v.
Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997), syllabus. In this case, we
cannot conclude that the trial court committed plain error by failing to consider the
constitutionality of the 1989 version of R.C. 5301.56 when neither party raised this
argument. Not only did neither party raise this argument, but both parties argued
how they would prevail under the 1989 version. Thus, we need not address
appellant’s constitutional argument.
{¶58} Accordingly, appellant’s third issue for review is without merit.
{¶59} Based on the analysis of appellant’s issues for review, both of her
assignments of error are without merit. The trial court properly granted summary
judgment in appellee’s favor and denied appellant’s motion for summary judgment.
{¶60} For the reasons stated above, the trial court’s judgment is hereby
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affirmed.
Vukovich, J., concurs.
Waite, J., concurs.