[Cite as Lipperman v. Batman, 2014-Ohio-5500.]

STATE OF OHIO, BELMONT COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

WAYNE LIPPERMAN, et al., ) 

) CASE NO. 14 BE 2 

PLAINTIFFS-APPELLANTS, ) 

) 

VS. ) O P I N I O N 

) 

NILE BATMAN, et al., ) 

) 

DEFENDANTS-APPELLEES. ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court, 

Case No. 12CV85. 

JUDGMENT: Affirmed. 

JUDGES: 

Hon. Joseph J. Vukovich 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

Dated: December 12, 2014
[Cite as Lipperman v. Batman, 2014-Ohio-5500.]

APPEARANCES: 

For Plaintiffs-Appellants: Attorney Richard Lancione 

Attorney Tracey Lancione Lloyd 

3800 Jefferson Street 

Bellaire, Ohio 43906 

(For Wayne Lipperman, et al.) 

For Defendants-Appellees: Attorney Bruce Smith 

1844 West State Street, Suite A 

Alliance, Ohio 44601 

(For Mile & Katheryn Batman) 

Attorney Lyle Brown 

41 South High Street, Suite 2200 

Columbus, Ohio 43215 

(For Reserve Energy Exploration Co. 

and Equity Oil & Gas Funds, Inc.) 

Attorney Marion Little, Jr. 

Attorney Christopher Hogan 

3500 Huntington Center 

41 South High Street 

Columbus, Ohio 43215 

(For XTO Energy, Inc. and Phillips 

Exploration, Inc.) 

Attorney John Keller 

52 East Gay Street 

Columbus, Ohio 43215 

(Amicus Curiae) 
[Cite as Lipperman v. Batman, 2014-Ohio-5500.]

VUKOVICH, J. 

{¶1} Plaintiffs-appellants Wayne Lipperman and Roseann Cook appeal the 

decision of the Belmont County Common Pleas Court granting summary judgment for 

defendants Nile Batman and Katheryn Batman, defendants-appellees Reserve 

Energy Exploration Co., Equity Oil & Gas Funds, Inc., XTO Energy Inc. and P.C. 

Exploration Inc. (nka Phillips Exploration, Inc.). 

{¶2} This appeal concerns the 1989 version of the Ohio Dormant Mineral Act 

(DMA) and 41.23 acres of real estate in Pultney Township, Belmont County, Ohio. 

Appellants own the surface of said property. Batman claims to own 50% of the 

minerals (excluding coal) underlying said property. Appellants claim that Batman did 

not preserve that interest, and that the interest was abandoned and subject to 

divesture under the 1989 version of the DMA. 

{¶3} The 1989 version of the DMA, former R.C. 5301.56(B)(1), provides that 

a mineral interest held by a person other than the surface owner of the land subject 

to the interest shall be deemed abandoned and vested in the owner of the surface 

unless (a) the mineral interest deals with coal, (b) the mineral interest is held by the 

government, or (c) a savings event occurred within the preceding twenty years. The 

six savings events are as follows: (i) the mineral interest has been the subject of a 

title transaction that has been filed or recorded in the recorder's office; (ii) there has 

been actual production or withdrawal by the holder; (iii) the holder used the mineral 

interest for underground gas storage; (iv) a mining permit has been issued to the 

holder; (v) a claim to preserve the mineral interest has been filed; or (vi) a separately 

listed tax parcel number has been created. R.C. 5301.56(B)(1)(c)(i)-(vi). 

{¶4} The trial court decided that under the 1989 version of the Act, the 20 

year period is a rolling period. It found that two savings events occurred that 

preserved Batman’s interest in the minerals Nile Batman inherited from his mother, 

Frances Batman. The first was the 1981 affidavit from Frances Batman that was 

recorded in the Belmont County Recorder’s Office specifically preserving her mineral 

interest in the subject tract of land. The second was the filing of Frances’ will in the 
-2-

Belmont County Probate Court and Recorder’s Office in 1989, which was 

approximately eight years after she died. 

{¶5} Appellants find fault with the trial court’s second determination. They 

admit that the 1981 affidavit, that was filed one month before Frances died, was a 

savings event. However, they assert that her death in 1981 was the second savings 

event and that the recording of her will in 1989 relates back to the date of her death 

and thus, the recording of the will only preserves the interest until 2001 (20 years 

from the date of her death). 

{¶6} For the reasons expressed below, the trial court’s decision is affirmed, 

albeit for reasons other than those expressed in its judgment entry. We have 

recently determined that the look-back period in the 1989 version of the Act is a fixed 

period that extends from March 22, 1969 to March 22, 1989. The act further provides 

for a three year grace period to perfect a savings event, which meant that a savings 

event could occur as late as March 22, 1992. Eisenbarth v. Reusser, 7th Dist. No. 

13MO10, 2014-Ohio-3792. Thus, based on our Eisenbarth decision, we are only 

concerned with what occurred from March 22, 1969 to March 22, 1992. The trial 

court’s statement that it is a rolling period is incorrect. However, that does not affect 

the result in this instance. It is undisputed that the 1981 affidavit occurred within that 

period and is a savings event. Thus, Batman’s interest in the minerals were 

preserved and the trial court correctly determined that there was no abandonment. 

Statement of the Case

{¶7} The facts in this case are undisputed. Appellants own a tract of land in 

Belmont County, Ohio. Batman claims that he owns 50% of the mineral interest in 

that land, which he acquired through inheritance. 

{¶8} Appellants signed a lease of the oil and gas rights in the property with 

Reserve Energy Exploration Company in April 2006. Batman also signed a lease 

with Reserve Energy Exploration for the oil and gas rights in November 2008. It 

appears that Reserve Energy Exploration has assigned its interest in both leases to 

Equity Oil & Gas Funds, Inc. Equity Oil & Gas Funds, Inc. then assigned part of its 

interests to XTO Energy Inc., and PC Exploration. 
-3-

{¶9} On February 15, 2012, appellants filed a complaint for quiet title in 

Belmont County Common Pleas Court against Batman, Reserve Energy Exploration 

Co., Equity Oil & Gas Funds, Inc., PC Exploration Inc. and XTO Energy. They were 

seeking to have the 50% mineral interests merge with the surface because the 

interest had been abandoned and subject to divesture under the 1989 version of the 

DMA. This complaint only sought to invoke the 1989 version of the DMA, it did not 

seek to apply the 2006 version of the act. All defendants filed an answer claiming 

that there were savings events that preserved Batman’s mineral interests. 03/15/12 

Batman Answer; 03/19/12 Reserve Energy Exploration Co. Answer; 03/21/12 PC 

Exploration Inc. and XTO Energy Inc. Answer; 04/30/13 Equity Answer. 

{¶10} On October 3, 2013, appellants moved for summary judgment. 

Appellants argued that even if Frances Batman’s September 14, 1981 Affidavit and 

Notice of Claim of Interest in Land that was filed and recorded in Belmont County, 

Ohio was a savings event under the 1989 version of the DMA, there was no other 

savings event that occurred prior to 2008. Thus, according to them, in 2001, 20 

years following the last savings event, the interest was abandoned and subject to 

automatic divesture under the 1989 version of the DMA. Appellants were asserting 

that the 20 year period in the 1989 version of the DMA is a rolling period. 

{¶11} The following day, Reserve Energy Exploration and Equity Oil & Gas 

Funds, Inc. filed its motion for summary judgment. These parties made two separate 

arguments. First, it asserted that if the 20 year period is a fixed period, then the 1981 

affidavit is a savings event and under the 1989 version of the Act, the minerals were 

not abandoned. Second, it argued that if a rolling period is employed, there was a 

savings event on April 10, 1989 when a certified copy of Frances’ will was recorded 

in Belmont County, Ohio. It contended that a will is a title transaction that constitutes 

a savings event. There was also another savings event when Batman signed a lease 

with Reserve in 2008. Thus, it contended that under a rolling period there is no 20 

year period where there has not been a savings event. 

{¶12} Appellants filed a response in opposition to Reserve Energy Exploration 

and Equity Oil & Gas Funds, Inc.’s summary judgment motion. 10/17/13 Motion. 
-4-

Appellants asserted that the recording of the will was not a title transaction because it 

was not properly probated in Belmont County, Ohio. 

{¶13} Reserve Energy Exploration and Equity Oil & Gas Funds, Inc. filed a 

response in opposition to appellants’ motion for summary judgment reiterating the 

same arguments espoused in its motion for summary judgment. 10/18/13 Motion. 

Reserve Energy Exploration and Equity Oil & Gas Funds, Inc. also filed a reply to 

appellants’ motion in opposition to Reserve Energy Exploration and Equity Oil & Gas 

Funds, Inc.’s summary judgment motion. 10/24/13 Reply. 

{¶14} On December 16, 2013, the trial court granted summary judgment for 

Reserve Energy Exploration and Equity Oil & Gas Funds, Inc. 

{¶15} Appellants timely appeal from that decision. 01/13/14 Notice of 

Appeal.1

Assignment of Error

{¶16} “The trial court erred in granting summary judgment for the defendant 

Reserve Energy Corporation because the mere act of recording an out of state will is 

not a titile [sic] transaction under ORC §5601.56. [sic]” 

{¶17} We review a trial court's decision to grant summary judgment using 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 apply the same test the 

trial court uses, which is set forth in Civ.R. 56(C). That rule 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). 

{¶18} In granting summary judgment for Reserve Energy Exploration and 

Equity Oil & Gas Funds, Inc. the trial court made multiple findings. First, it stated that 

Lipperman and Cook sought to have Batman’s mineral interests deemed abandoned 

 1

It is noted that this case is closely related to another appeal presently before this court – 

Albanese v. Batman, 7th Dist. No. 14BE22. 
-5-

and subject to divesture under the 1989 version of the DMA. They did not seek to 

have the mineral interests deemed abandoned under the 2006 version of the act and 

they did not make an attempt to comply with the notice provisions in the 2006 

version. Thus, the trial court indicated that it was only applying the 1989 version of 

the act. It also found that the 20 year look-back period in the 1989 version of the act 

is a rolling, not a fixed, look-back period. It then found that there were three savings 

events that preserved the mineral interest. First, is Frances’ Affidavit that was filed 

with the Belmont County Recorder’s Office on September 14, 1981. It found that the 

language contained in the affidavit complies with the requirements of R.C. 5301.52 

and as such qualifies as a savings event under the 1989 version of the DMA. The 

second savings event was the filing of a certified copy of Frances’ will in the Belmont 

County Recorder’s Office on April 10, 1989 and the recordation of that will on April 

11, 1989. The third savings event was the oil and gas lease between Batman and 

Reserve Energy Exploration in November 2008 that was recorded on December 3, 

2008. Thus, given those savings events, the trial court determined that Batman had 

preserved his interest in the minerals and thus, granted summary judgment for 

Reserve Energy Exploration and Equity Oil & Gas Funds, Inc. 

{¶19} The parties’ arguments on appeal focus on the alleged savings events. 

The parties did not assign as error the trial court’s determination that the 1989 

version of the act has a rolling look-back period. However, based on our recent 

decision in Eisenbarth, we must address the trial court’s determination that the lookback period is rolling. 

{¶20} In Eisenbarth, this court was asked to decide whether the 20 year lookback period is a rolling or fixed period. Eisenbarth v. Reusser, 7th Dist. No. 13MO10, 

2014-Ohio-3792. We concluded that “the statute is ambiguous as to whether the 

look-back period is anything but fixed. The use of the words ‘preceding twenty 

years,’ without stating the preceding twenty years of what, does not create a rolling 

look-back period.” Id. at ¶ 48. In addressing the argument that the statute’s 

language that provides for successive claims to preserve indicates that the statute 

has a rolling period, we explained: 
-6-

 The mention of successive claims to preserve and indefinite 

preservation in R.C. 5301.56(D)(1) could merely be a reference to any 

preservations that were filed under the OMTA as existed prior to the 

1989 DMA in order to show that a new claim to preserve can still be 

filed if the old one was filed outside of the new twenty-year look-back. 

There is other statutory language connecting the twenty-year look-back 

period to the date of enactment as (B)(2)’s grace period provides three 

years from the date of enactment before items will be deemed 

abandoned. R.C. 5301.56(B)(2). As forfeitures are abhorred in the law, 

we refuse to extend the look-back period from fixed to rolling. See 

generally State ex rel. Falke v. Montgomery Cty. Resid. Dev., Inc., 40 

Ohio St.3d 71, 73, 531 N.E.2d 688 (1988) (the law abhors a forfeiture). 

 As to the Eisenbarths’ query of why the legislature would enact a 

“dead letter law,” the point of the 1989 DMA may have been to give 

three years to eliminate or refresh stale mineral claims in the original 

look-back period, and the legislature planned to enact a new version for 

the next twenty-year period if public policy reasons for abandonment 

still applied in the future. And, the legislature did then enact the 2006 

DMA within twenty years of the former DMA, adding a new look-back, 

twenty years from the service of notice. (Or, the intent was a multiple 

future periods, but that intent was not properly expressed.) 

Id. at ¶ 49-50. 

{¶21} Therefore, based on our Eisenbarth decision the trial court’s conclusion 

that the look-back period is rolling is incorrect; the look-back period is fixed. 

However, the trial court’s incorrect conclusion does not result in an automatic 

reversal. Rather, our analysis must continue and we must determine whether there 

was a savings event during the fixed period. 

{¶22} The 1989 version of the DMA became effective on March 22, 1989. 

Thus, the 20 year look-back period extends from March 22, 1969 to March 22, 1989. 
-7-

However, the act further provides for a three year grace period to perfect a savings 

event, which meant that a savings event could occur as late as March 22, 1992. 

{¶23} Here, all parties admit that the 1981 Frances Batman affidavit is a 

savings event. This affidavit states that it is “intended to be recorded in the Deed 

Records in Belmont County, Ohio for the purposes of evidencing the descent of such 

mineral interests and evidencing the claim” of Frances Batman in the “interests as 

provided in Section 5301/47 et seq., Ohio Revised Code, the “Ohio Marketable title 

Act.” Furthermore, the claim to preserve complies with R.C. 5301.52. See R.C. 

5301.56(C) (claims to preserve must comply with R.C. 5301.52). Consequently, 

since the statute has a fixed look-back period and a preservation act occurred during 

that period, the minerals were not abandoned under the 1989 DMA. 

{¶24} In reaching this conclusion, we do not need to determine whether the 

recordation of the will in 1989 (which occurred within the three year grace period for 

the 1989 version) was a savings event. It is irrelevant because the 1981 affidavit had 

already preserved the mineral interest for the look-back period in the 1989 act. 

{¶25} Therefore, for those reasons, the trial court’s grant of summary 

judgment for Reserve Energy Exploration and Equity Oil & Gas Funds, Inc. is hereby 

affirmed. The sole assignment of error is deemed meritless. 

Donofrio, J., concurs. 

Waite, J., concurs.