[Cite as Pike v. Piatt, 2016-Ohio-5041.]

STATE OF OHIO, MONROE COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

JEFFREY D. PIKE and ) CASE NO. 16 MO 0007 

MINDI A. PIKE TRUST, et al. ) 

) 

PLAINTIFFS-APPELLEES ) 

) 

VS. ) OPINION AND 

) JUDGMENT ENTRY 

MAXINE PIATT, et al. ) 

) 

DEFENDANTS-APPELLANTS ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common 

Pleas of Monroe County, Ohio 

Case No. CV 2014-153 

JUDGMENT: Dismissed. 

APPEARANCES: 

For Plaintiffs-Appellees: Atty. Ethan Vessels 

Atty. Olivia Walker 

Fields, Dehmlow & Vessels 

309 Second Street 

Marietta, Ohio 45750 

For HG Energy, LLC: Atty. Michael Buell 

Buell & Sipe Co, LPA 

322 Third Street 

Marietta, Ohio 45750 

For Defendants-Appellants: Atty. Matthew W. Warnock 

Atty. Daniel C. Gibson 

Atty. Daniel E. Gerken 

Bricker & Eckler, LLP 

100 South Third Street 

Columbus, Ohio 43215 

JUDGES: 

Hon. Cheryl L. Waite 

Hon. Gene Donofrio 

Hon. Mary DeGenaro 

Dated: July 11, 2016
[Cite as Pike v. Piatt, 2016-Ohio-5041.]

PER CURIAM. 

{¶1} Defendants-Appellants Maxine Piatt, et al. appeal a determination of 

the Monroe County Common Pleas Court denying their motion to vacate that court’s 

decision holding their mineral interests in the subject property had vested in the 

Plaintiffs-Appellees Jeffrey D. Pike and Mindi A. Pike Trust, Jeffrey Pike and Mindi 

Pike, Trustees, et al. as surface owners after applying the 1989 Ohio Dormant 

Mineral Act. Appellees have filed a motion to dismiss and Appellants have filed a 

memorandum in opposition. Because the Civ.R. 60(B) motion to vacate filed by 

Appellants below served only as an attempt to substitute for a timely appeal, this 

appeal is dismissed. 

{¶2} This case began as a quiet title action involving the Ohio Dormant 

Mineral Act (“ODMA”). Appellees own a 40-acre parcel of property in Monroe 

County, Ohio. The mineral interests had been severed from the property in 1961 and 

were sold to Appellants’ predecessors-in-interest. Appellees filed a quiet title action 

arguing that no savings events had occurred in 20 years and that they, as the surface 

owners, should now be the owners of the mineral rights to the property. 

{¶3} Appellants argued that two savings events had occurred, that the 2006 

ODMA applied rather than the 1989 ODMA, and that the 1989 ODMA is not selfexecuting. The trial court granted summary judgment to Appellees on April 9, 2015, 

and held that the 1989 ODMA applied, no savings events had occurred, and the 

mineral interests vested in Appellees as the surface owners. 

{¶4} Appellants did not appeal that decision. Rather, nearly a year later on 

March 18, 2016, Appellants filed a Civ.R. 60(B) motion to vacate, explicitly conceding 
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that the motion was filed as result of “clerical missteps” which they argued constituted 

excusable neglect resulting in the failure to file an appeal. The trial court denied 

Appellants’ motion to vacate and this appeal followed. Appellees have filed a motion 

to dismiss and Appellants have filed a memorandum in opposition. 

{¶5} Appellees argue that Appellants filed their Civ.R. 60(B) motion to vacate 

below as a substitute for a timely appeal of the trial court’s April 9, 2015 judgment 

entry. In response, Appellants argue that they are currently appealing only the trial 

court’s March 18, 2016 decision denying their motion to vacate. 

{¶6} In order to prevail on a motion for relief from judgment under Civ.R. 

60(B), the movant must demonstrate three prongs of the GTE test, which are: (1) a 

meritorious claim or defense; (2) entitlement to relief under one of the five grounds 

listed in the rule; and (3) the timeliness of the motion. GTE Automatic Elec., Inc. v. 

ARC Indus., Inc., 47 Ohio St.2d 146, 150-151, 351 N.E.2d 113 (1976). This Court 

will not disturb a trial court’s decision concerning motions filed pursuant to Civ.R. 

60(B) absent an abuse of discretion. Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 

17, 20, 520 N.E.2d 564 (1988). An abuse of discretion connotes an attitude by the 

court that is arbitrary, unconscionable, or unreasonable. Blakemore v. Blakemore, 5 

Ohio St.3d 217, 450 N.E.2d 1140 (1983). 

{¶7} The grounds for relief under Civ.R. 60(B) are: 

(1) mistake, inadvertence, surprise or excusable neglect; (2) newly 

discovered evidence which by due diligence could not have been 

discovered in time to move for a new trial under Rule 59(B); (3) fraud 
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(whether heretofore denominated intrinsic or extrinsic), 

misrepresentation or other misconduct of an adverse party; (4) the 

judgment has been satisfied, released or discharged, or a prior 

judgment upon which it is based has been reversed or otherwise 

vacated, or it is no longer equitable that the judgment should have 

prospective application; or (5) any other reason justifying relief from the 

judgment. 

{¶8} Appellants’ March 18, 2016 motion for relief from judgment cited to 

Civ.R. 60(B)(1). Counsel for Appellants claimed excusable neglect and inadvertent 

mistake led to their failure to appeal the trial court’s decision. Despite acknowledging 

that they had received the trial court’s decision stamped “FINAL APPEABLE 

ORDER,” counsel for Appellants set forth a detailed explanation that their law firm, 

through “clerical missteps,” did not subsequently appeal that decision. 

{¶9} This Court has expressly held that “[a] Civ.R. 60(B) motion for relief 

from judgment cannot be used as a substitute for a timely appeal or as a means to 

extend the time for perfecting an appeal from the original judgment.” (Emphasis 

deleted.) Hamilton v. Spirtos, 7th Dist. No. 01-C.A.-58, 2002-Ohio-1562, ¶ 30, citing 

Key v. Mitchell, 81 Ohio St.3d 89, 90-91, 689 N.E.2d 548 (1998). Any claims or 

arguments that were not raised in a timely appeal, but which could have been raised, 

are precluded from being raised in a subsequent Civ.R. 60(B) motion. Id. at 91, 689 

N.E.2d 548. As the Ohio Supreme Court held in State ex rel. Durkin v. Ungaro, 39 

Ohio St.3d 191, 529 N.E.2d 1268 (1988): 
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Such procedural devices cannot be used in order to obtain review of a 

judgment where a timely appeal was not filed. If we were to hold 

differently, judgments would never be final because a party could 

indirectly gain review of a judgment from which no timely appeal was 

taken by filing a motion for reconsideration or a motion to vacate 

judgment. 

Id. at 193, 529 N.E.2d 1268. 

{¶10} “When a Civ.R. 60(B) motion is used as a substitute for a timely appeal, 

and when the denial of that motion is subsequently appealed, the proper response is 

the dismissal of the appeal. ” Hamilton, supra, at ¶ 35, citing State ex rel. Richard v. 

Cuyahoga Cty. Commrs., 89 Ohio St.3d 205, 729 N.E.2d 755 (2000); Key v. Mitchell, 

81 Ohio St.3d 89, 91, 689 N.E.2d 548 (1998); and State ex rel. Durkin v. Ungaro, 39 

Ohio St.3d 191, 529 N.E.2d 1268 (1988). In this instance, counsel for Appellants 

acknowledged that the Civ.R. 60(B) motion was filed as a result of their failure to 

timely file a notice of appeal. Accordingly, we hereby dismiss this appeal. Costs to 

be taxed against Appellants. 

Waite, J., concurs. 

Donofrio, P.J., concurs. 

DeGenaro, J., concurs.