Opinion
23 BE 0006
04-25-2024
CHARLES MELCHIORI et al., Plaintiffs-Appellants, v. RICHARD NOWAK et al., Defendants-Appellees.
Atty. Matthew W. Onest, Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A., for Plaintiffs-Appellants Atty. Michael D. Dortch, and Atty. Richard R. Parsons, Kravitz, Brown & Dortch, LLC, for Defendants-Appellees, Capstone Holding Company and Ohio River Collieries Company Atty. Elizabeth L. Glick, Law Office of Elizabeth L. Glick and Atty. Charles H. Bean, Thornburg & Bean, for Defendant-Appellee, Richard Nowak
Civil Appeal from the Court of Common Pleas of Belmont County, Ohio Case No. 12 CV 100
Judgment: Reversed. Summary Judgment Entered in Favor of Appellants.
Atty. Matthew W. Onest, Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A., for Plaintiffs-Appellants
Atty. Michael D. Dortch, and Atty. Richard R. Parsons, Kravitz, Brown & Dortch, LLC, for Defendants-Appellees, Capstone Holding Company and Ohio River Collieries Company
Atty. Elizabeth L. Glick, Law Office of Elizabeth L. Glick and Atty. Charles H. Bean, Thornburg & Bean, for Defendant-Appellee, Richard Nowak
Before: Cheryl L. Waite, Carol Ann Robb, Mark A. Hanni, Judges.
OPINION AND JUDGMENT ENTRY
WAITE, J.
{¶1} In this Marketable Title Act ("MTA") appeal, Appellants Charles G. Melchiori, Jr., James R. Gilli, Alice Mae Robinson, Naomi J. Calovini, and Martha Ann Stockert appeal a January 19, 2023 Belmont County Court of Common Pleas judgment entry granting summary judgment in favor of Appellees Ohio River Collieries Company ("ORCC"), Clyde Stewart III, and Dennis Dalpiaz. As will later be discussed, on motion of the parties, we have substituted the Estate of Clyde Stewart III (care of Melanie R. Cordia) in place of Stewart, and Daniel H. Hinds in place of Dalpiaz. There are two properties at issue on appeal which involve separate Appellees. As to both properties, labeled Property C and D, Appellants contend that the trial court erroneously placed procedure before merits by refusing to consider evidence a will exists that provides undisputed evidence of a title transaction preventing extinguishment pursuant to the MTA. Appellants also argue that the court erroneously relied on an admission that contains incorrect conclusions of law in reaching the court's decision. For the following reasons, Appellants' arguments as to both properties have merit. The judgment of the trial court is reversed and summary judgment is entered in favor of Appellants.
Factual and Procedural History
{¶2} This appeal arises out of a complex case involving four properties. To complicate matters further, each property included several tracts of land, some located in different townships. For ease of understanding and to avoid unnecessary complications, only the properties and tracts of land at issue within this appeal will be addressed. The properties at issue are labeled within the record and on appeal as "Property C" and "Property D." As later discussed at more length, Appellee ORCC holds only an interest in Property C and Appellees Cordia and Hinds hold only an interest in Property D.
{¶3} The issue as it relates to both properties centers on an interest in oil and gas that was created in two separate deeds. Property C is comprised of three tracts of land in Union and Wheeling Townships. Appellees ORCC own an interest in only one tract, described as 4.268 of 7.7 acres (the remainder is owned by Capstone Holding Company). This is the sole tract at issue as regards Property C. The deed creating the interest was recorded on October 22, 1959. Within the deed, Charles G. and Mary T. Melchiori conveyed the surface to George and Jane Thornburg. In relevant part, the Melchioris excepted and reserved "all coal and mining rights together with all other minerals * * *." (10/22/1958 Deed.)
{¶4} As to Property D, on appeal only a 1.235 acre and a 4.978 acre tract of land are at issue. The deed creating the relevant interest was recorded on February 27, 1975. In this deed, Charles G. and Mary T. Melchiori conveyed the surface rights to Virgil Beal, Jr. and Rose Marie Beal but included the clause: "Grantors herein reserve and except to themselves, their heirs and assigns all oil and gas under the above described premises." (2/27/1975 Deed.)
{¶5} Mary Melchiori died and her will was recorded in the Belmont County Probate Court on April 27, 1988. Within her will, Mary devised all her property to her husband in a general devise: "ITEM TWO: I give, bequeath, and devise all of my real and personal property to my husband, Charles G. Melchiori, if he survives me." (Exh. 1.) However, her will also contained an alternate general devise: "ITEM THREE: If my husband does not survive me, then I give, bequeath, and devise all of my real and personal property to my children, in equal shares." (Exh. 1.)
{¶6} On February 22, 2012, Appellants Charles G. Melchiori, Jr., Nancy Gilli (later substituted with James R. Gilli), Alice Robinson, Martha Stockert, and Naomi Calovini filed a complaint for declaratory judgment and to quiet title against Appellees Richard Nowak, ORCC, Capstone Holding Company, Clyde Stewart III (later substituted with Appellee Estate of Clyde Stewart III, care of Melanie R. Cordia), Dennis Dalpiaz (later substituted with Appellee Daniel H. Hinds) and Hess Corporation. We note that Nowak has filed a brief in this appeal but does not provide any arguments. Instead, he asserts that he is not a party to this appeal, as his interests are not affected by this appeal's resolution. Hess did not file a brief, but likewise is not a party on appeal, as its interests are not at stake.
{¶7} Relevant to this appeal, Appellees sought the following admissions from Appellants: "REQUEST FOR ADMISSIONS NO. 5: Admit that the oil and gas interests of the [sic] Dennis Dalpiaz and Clyde Stewart that is the subject of Appellant's complaint is vested in an unbroken chain of title for more than forty (40) years[,]" and "REQUEST FOR ADMISSIONS NO. 6: Admit that all interests in subject real estate that were created prior to the effective date of the root of title for Defendants Dennis Dalpiaz and Clyde Stewart are declared null and void under the [MTA]." (2/1/18 Defendant's motion to deem their first requests for admissions admitted.) On February 1, 2018, Appellees filed a request for the admissions to be admitted. The trial court did not immediately rule on the request.
{¶8} All parties filed competing motions for summary judgment. The court scheduled and held a hearing on the matter. Although the transcripts for this hearing are not a part of the appellate record, it is clear that at the conclusion of the hearing, the court announced its intention to rule as follows regarding the relevant properties: as to Property C, the court would rule in favor of ORCC. As to Property D, there were two relevant tracts at issue: a 1.235 acre tract owned by Dalpiaz and a 4.989 acre tract owned by Stewart. The court announced its intention to rule in favor of Dalpiaz and Stewart. The court also declared its intention to grant Appellees' request to accept the admissions, and these served as the basis of its ruling on Property D.
{¶9} Thereafter, Appellants filed a motion for reconsideration. For the first time they provided Mary Melchiori's will as evidence of a title transaction. On January 19, 2023, the trial court filed a judgment entry providing more detail and finalizing the ruling it made from the bench in this matter. The court also denied Appellants' motion for reconsideration on the basis that Appellants did not timely produce the will, thus waived the argument that it was evidence of a title transaction. It is from this entry that Appellants timely appeal.
{¶10} We note that on March 30, 2023, Appellants filed a motion with this Court seeking the substitution of two parties. Since the trial court's order, Clyde Stewart passed away and Dennis Dalpiaz sold his property to Daniel H. Hinds, and did not reserve the mineral interests. On October 23, 2023, we granted the motion and substituted the Estate of Clyde Stewart III (in care of Melanie R. Cordia) in place of Stewart, and Daniel H. Hinds in place of Dalpiaz. We gave the new parties thirty days to file an appellate response brief, however, neither party did so. These new parties are only relevant to Property D.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO APPELLEES BECAUSE (1) THE TRIAL COURT ERRONEOUSLY HELD THAT A FILED WILL WITH A REAL ESTATE DEVISE CLAUSE AND A RESIDUE CLAUSE IS NOT A TITLE TRANSACTION UNDER THE OHIO MARKETABLE TITLE ACT WHEN THE OHIO SUPREME COURT HAS HELD THE OPPOSITE AND (2) THE TRIAL IGNORED THE FACT THAT ONE OF THE SEVERED MINERAL INTERESTS WAS CREATED LESS THAN 40 YEARS BEFORE APPELLANTS FILED THE LAWSUIT, MEANING THE AFFECTED APPELLEES DO NOT HAVE AN UNBROKEN 40-YEAR CHAIN OF TITLE TO THE MINERALS.
{¶11} Although Appellants raise only one assignment of error, it contains two different issues for this Court's review. First, they argue that Mary Melchiori's will, which was filed in probate court, is a title transaction preventing extinguishment under the MTA. Second, they argue that the deed creating the Melchiori interest as it relates to Property D was recorded on February 28, 1975 and the complaint was filed on February 22, 2012. Thus, only thirty-seven of the forty years had passed after the root of title deed created the interest at issue. For ease of understanding, these arguments will be separately addressed.
Summary Judgment
{¶12} An appellate court conducts a de novo review of a trial court's decision to grant summary judgment, using the same standards as the trial court set forth in Civ.R. 56(C). Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Before summary judgment can be granted, the trial court must determine that: (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing the evidence most favorably in favor of the party against whom the motion for summary judgment is made, the conclusion is adverse to that party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977). Whether a fact is "material" 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).
{¶13} "[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim." (Emphasis deleted.) Dresher v. Burt, 75 Ohio St.3d 280, 296, 662 N.E.2d 264 (1996). If the moving party carries its burden, the nonmoving party has a reciprocal burden of setting forth specific facts showing that there is a genuine issue for trial. Id. at 293, 662 N.E.2d 264. In other words, when presented with a properly supported motion for summary judgment, the nonmoving party must produce some evidence to suggest that a reasonable factfinder could rule in that party's favor. Brewer v. Cleveland Bd. of Edn., 122 Ohio App.3d 378, 386, 701 N.E.2d 1023 (8th Dist.1997).
{¶14} The evidentiary materials to support a motion for summary judgment are listed in Civ.R. 56(C) and include the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact that have been filed in the case. In resolving the motion, the court views the evidence in a light most favorable to the nonmoving party. Temple, 50 Ohio St.2d at 327, 364 N.E.2d 267.
Recorded Will (Properties C and D)
{¶15} Appellants argue that the trial court erroneously refused to consider Mary Melchiori's will. In the alternative, the court found that the will did not constitute a title transaction preventing extinguishment. Appellants cite R.C. 5301.47 and prior caselaw arising from this Court providing that documents filed in probate court are considered recorded for purposes of the MTA. See Hartline v. Atkins, 7th Dist. Monroe No. 20MO0006, 2020-Ohio-5606. Appellants also rebut the trial court's finding that Mary Melchiori's will failed to specifically address the mineral interests by citing to this Court's Opinion in Schlabach v. Kondik, 2017-Ohio-8016, 98 N.E.3d 1048 (7th Dist.) Appellants further point to an earlier filed affidavit of Charles G. Melchiori Jr. raising the issue of Mary's will and that he and his siblings were heirs by virtue of this will, which they believe at least created an issue of genuine material fact.
{¶16} Appellees rely on the standard of review, which they believe is abuse of discretion. Appellees argue that that Appellants failed to provide any reason for failing to produce the will during the ten years of litigation, despite the fact that they referenced the will within the complaint. Appellees concede that the court had not yet entered a final order when the actual will was provided, however, they focus on the fact that the will should have been presented earlier in the litigation.
{¶17} The standard of review in this matter is de novo, as the court was dealing with summary judgment. A motion for reconsideration filed in a trial court is a nullity, thus there is no applicable standard of review. Ritchie v. Mahoning Cnty., 2017-Ohio-1213, 80 N.E.3d 560, ¶ 24 (7th Dist.). There are several issues that must be addressed in this matter: (1) whether the trial court should have considered Mary Melchiori's will, (2) whether the will was recorded, and (3) whether the will constitutes a title transaction per Peppertree Farms, LLC. v. Thonen, 167 Ohio St.3d 61, 2022-Ohio-396, 188 N.E.3d 1069.
{¶18} Beginning with whether the trial court should have accepted and considered the will, we note that an oral pronouncement of a trial court's intention to rule in a specific manner is just that, an intention to rule. It is axiomatic that a court speaks only through its journal entries. See State v. Brown, 7th Dist. Monroe No. 19 MO 0017, 2020-Ohio-4726, ¶ 13, citing State v. King, 70 Ohio St.3d 158, 162, 1994-Ohio-412, 637 N.E.2d 903. A preliminary oral ruling from the bench falls short of this standard. Thus, the court's pronouncement in the instant case in no way constitutes a final ruling. While parties are certainly obliged to provide evidence in a timely manner, the facts of this case dictate that the will was integral to any final decision in this matter and neither the parties nor the trial court should have been surprised by its existence, as it is apparent from the complaint that Mary Melchiori died testate. This fact placed all parties and the court on notice that a will existed. While the trial court is correct in that the will should have been presented in a more timely manner, we note that this case had been pending since the complaint was filed on February 22, 2012, almost eleven years before the court's journal entry was filed. Refusing to allow Appellants to provide a critical piece of evidence that is unquestionably outcome derivative is error. As the will should have been considered, we next address whether it constitutes a title transaction.
{¶19} While the trial court stated: "it can find nothing in the record before it to indicate that this [will] was recorded * * * in the Belmont County Recorders' Office," the will bears a stamp reflecting that it was filed in the Belmont County Probate Court on April 27, 1988. (1/19/23 J.E.) We have previously held that "[t]he Marketable Title Act's extinguishment provisions do not require that the title transaction being filed is filed in the recorder's office. Recording, in the context of R.C. 5301.49(D), includes filing in the probate court. Thus, the filing of the wills in probate court in this case suffice as 'recording' under the MTA." (Internal citations omitted.) Hartline v. Atkinson, 7th Dist. Monroe No. 20 MO 0006, 2020-Ohio-5606, ¶ 26. Because Mary Melchiori's will was filed in probate court, it constitutes a "recording" for purposes of the MTA.
{¶20} Appellants rely on Peppertree to contend that the will constitutes a title transaction. Relevant to Peppertree and the matter before us," '[t]itle transaction' means 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). Hence, for our purposes, Mary Melchiori's will would constitute a title transaction only if it affected title to an interest in land. The Peppertree Court concluded that "[a] will that distributes the decedent's oil and gas rights affects title to an interest in land." Id. at ¶ 6. As such, we must determine whether Mary's will distributed her oil and gas interests.
{¶21} Critical to our analysis is whether the devise in Mary Melchiori's will constituted a specific or general devise. If the clause is deemed specific, a residuary clause must be present in order to distribute the mineral interests which are not separately listed within the will. However, if the clause constitutes a general devise, such clause has the same effect as a residuary clause and would transfer all real and personal property, including the mineral rights. In other words, the clause would distribute the entire property owned by Mary Melchiori, which would include any mineral interests, to her heirs.
{¶22} "[A] specific devise is a devise of a part or all of or an interest in some particular real estate described by the will so as to distinguish it from real estate generally." Chambers v. Bockman, 2019-Ohio-3538, 142 N.E.3d 1183, ¶ 23 (12th Dist.); In re Estate of Witteman, 21 Ohio St.2d 3, 254 N.E.2d 345 (1969), paragraph one of the syllabus. The Twelfth District has found a general devise exists where:
The clause does not leave a particular thing or portion of the Decedent's estate to appellant. The clause further does not describe 'any particular real estate so as to identify it from real estate generally' or distinguish it from other real property in the Decedent's estate. Witteman, 21 Ohio St.2d at 7, 254 N.E.2d 345. mRather, it simply leaves all property of every kind and description whether real or personal to appellant.Chambers at ¶ 25.
{¶23} Mary Melchiori's will provided: "ITEM TWO: I give, bequeath, and devise all of my real and personal property to my husband, Charles G. Melchiori, if he survives me. ITEM THREE: If my husband does not survive me, then I give, bequeath, and devise all of my real and personal property to my children, in equal shares." (Exh. 1.)
{¶24} Neither of these devises describe specific real estate. Instead, they generally describe all of Mary's real and personal property, collectively. There is nothing within these devises to distinguish any type of real estate or personal property, thus they are general alternative devises that would serve to transfer all interests, including mineral interests, upon Mary's death.
{¶25} We have previously held that "Ohio has long recognized that minerals underlying the surface, including oil and gas, are part of the realty." Schlabach v. Kondik, 16 HA 0017, 2017-Ohio-8016, 98 N.E.3d 1048, ¶ 23 (7th Dist.), citing Pure Oil Co. v. Kindall, 116 Ohio St. 188, 201-202, 156 N.E. 119 (1927); Kelly v. Ohio Oil Co., 57 Ohio St. 317, 49 N.E. 399 (1897), paragraph one of the syllabus. However, Ohio allows mineral interests to be severed from the remaining real property, resulting in separate ownership. Id., citing Pure Oil at 202, 156 N.E. 119; Gill v. Fletcher, 74 Ohio St. 295, 302-303, 78 N.E. 433 (1906). Thus, "[u]nsevered minerals are real property; however, minerals become personal property when severed from the land." Id., citing Back v. Ohio Fuel Gas Co., 160 Ohio St. 81, 88-89, 113 N.E.2d 865 (1953).
{¶26} Because Mary's will is recorded and is a title transaction that distributed her entire real and personal property (including oil and gas rights), it constitutes a title transaction that prevented extinguishment of her interests by virtue of the MTA. The trial court erred in ruling otherwise, and Appellants' arguments in this regard have merit.
Root of Title (Property D)
{¶27} Appellants argue that the Melchiori interest in Property D was created on February 28, 1975. Thus, the relevant forty-year period for purposes of the MTA did not end until February 28, 2015. Because the MTA only acts to extinguish interests prior to the root of title, and the deed giving Appellants their interest was filed only thirty-seven years before the filing of the complaint, the MTA does not apply, here. Appellants contend the trial court relied on a request for admissions to find in favor of Stewart and Dalpiaz, which places procedural deficiencies above the merits of the case.
{¶28} Complicating matters, the trial court ruled in favor of Clyde Stewart and Dennis Dalpiaz in regard to Property D, however, Mr. Stewart has since died and Mr. Dalpiaz has sold the surface rights without reserving any mineral rights in that deed. After this Court substituted the new parties, it gave each of the new parties time to file a brief. Neither of the newly substituted parties filed a brief. Appellee ORCC conceded at trial that it did not have a valid interest in Property D.
{¶29} The MTA defines "root of title" as "that conveyance or other title transaction in the chain of title of a person, purporting to create the interest claimed by such person, upon which he relies as a basis for the marketability of his title, and which was the most recent to be recorded as of a date of forty years prior to the time when marketability is being determined." R.C. 5301.47(E). The effective date of the root of title is the date it was recorded. R.C. 5301.47(E). Hartline v. Atkinson, 7th Dist. Monroe No. 20 MO 0006, 2020-Ohio-5606, ¶ 19.
{¶30} A root of title is defined as "that conveyance or other title transaction in the chain of title of a person, purporting to create the interest claimed by such person, upon which he relies as a basis for the marketability of his title, and which was the most recent to be recorded as of a date of forty years prior to the time when marketability is being determined." R.C. 5301.47(E). Significantly, MTA extinguishes only those interests that exist prior to the root of title deed which must have been recorded in the forty or more years prior to the point marketability is sought to be determined.
{¶31} In Appellants' partial motion for summary judgment, they argued that the root of title deed was recorded on February 27, 1975. The trial court failed to conduct any root of title deed analysis. Instead, the court relied on Stewart and Dalpiaz's request for admissions. Stewart and Dalpiaz previously sought the following admissions from Appellants: "REQUEST FOR ADMISSIONS NO. 5: Admit that the oil and gas interests of the [sic] Dennis Dalpiaz and Clyde Stewart that is the subject of Appellant's complaint is vested in an unbroken chain of title for more than forty (40) years[,]" and "REQUEST FOR ADMISSIONS NO. 6: Admit that all interests in subject real estate that were created prior to the effective date of the root of title for Defendants Dennis Dalpiaz and Clyde Stewart are declared null and void under the [MTA]." (2/1/18 Defendant's motion to deem their first requests for admissions admitted.) As Appellants did not respond to the request for admissions, Appellees filed to have those admissions deemed admitted. We note that the court did not rule on this request until including it in the judgment entry.
{¶32} No caselaw can be found addressing this exact issue. However, we recently considered whether a party can stipulate to incorrect conclusions of law in Quest Wellness Ohio, LLC v. Samuels, 7th Dist. Mahoning No. 23 MA 0013, 2023-Ohio-4450. In Quest, we recognized that "parties cannot concede or stipulate as to matters of law, only issues of fact." Id. at ¶ 67; citing Kocher v. Ascent Resources-Utica, LLC, 2023-Ohio-3592, 225 N.E.3d 528, (7th Dist.), ¶ 55, citing Crow v. Nationwide Mut. Ins. Co., 159 Ohio App.3d 417, 2004-Ohio-7117, 824 N.E.2d 127 (5th Dist.).
{¶33} The Melchiori interest was created within the deed recorded on February 27, 1975. The complaint in this matter was filed on February 22, 2012, thirty-seven years after the interest was created. Because a span of forty years had not passed, the MTA cannot apply, here. For the same reasons, no alleged root of title deed within this chain can possibly qualify for purposes of the MTA. Appellants argued that the information contained in the request for admissions was legally incorrect in their partial motion for summary judgment, and the court was placed on notice that the admissions sought were to the actual legal conclusion at issue in this case. While the court appears to have relied on these in reaching its judgment, it is readily apparent that based on the facts of this case such reliance was erroneous.
{¶34} Because the court was aware of the error, that the requests for admission were actually legal, not factual, before it relied on them for its decision, it is readily apparent the trial court erred. A review of the actual facts in this record should have lead the court to the opposite legal conclusion. This assignment of error has merit.
Conclusion
{¶35} Appellants contend that the trial court erroneously placed procedure before merits by refusing to consider evidence of a will that provides undisputed evidence there was a title transaction preventing extinguishment by way of the MTA. Appellants also argue that the court erroneously relied on an admission that contains incorrect conclusions of law in reaching its decision. For the reasons provided, Appellants' arguments have merit. The judgment of the trial court is reversed and summary judgment is entered in favor of Appellants.
Robb, P.J. concurs.
Hanni, J. concurs.
For the reasons stated in the Opinion rendered herein, Appellants' assignment of error is sustained and it is the final judgment and order of this Court that the judgment of the Court of Common Pleas of Belmont County, Ohio, is reversed. Summary judgment is hereby entered in favor of Appellants. Costs to be taxed against the Appellees.
A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.