[Cite as Kross v. Ruff, 2017-Ohio-4276.]

STATE OF OHIO, JEFFERSON COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

MARK S. KROSS, et al. ) CASE NO. 13 JE 0035 

) 

PLAINTIFFS-APPELLEES ) 

) 

VS. ) OPINION 

) 

JERRY RUFF, Executor of the Estate of ) 

JEAN YVONNE RUFF, Deceased, et al. ) 

) 

DEFENDANTS-APPELLANTS ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common 

Pleas of Jefferson County, Ohio 

Case No. 12 CV 303 

JUDGMENT: Reversed and Remanded. 

APPEARANCES: 

For Plaintiffs-Appellees: Atty. Steven J. Shrock 

Atty. Clinton G. Bailey 

Critchfield, Critchfield & Johnston, Ltd. 

138 E. Jackson Street 

Millersburg, Ohio 44654 

For Defendants-Appellants: Atty. John Curtis Alberti 

John Curtis Alberti Co., LPA 

209 Portage Trail Ext. West, 

Suite 100 

Cuyahoga Falls, Ohio 44223 

JUDGES: 

Hon. Cheryl L. Waite 

Hon. Gene Donofrio 

Hon. Carol Ann Robb 

Dated: June 12, 2017
[Cite as Kross v. Ruff, 2017-Ohio-4276.]

WAITE, J. 

{¶1} Appellants Jean Yvonne Ruff, Frederick Simpson, Lincoln Simpson, 

Polly McJessy, Scott Harrah as Executor of the Estate of James Harrah, and William 

Harrah (collectively referred to as “Appellants”) appeal a September 13, 2013 

Jefferson County Common Pleas Court decision to grant summary judgment in favor 

of Appellees Mark S. and Joe Kross (collectively referred to as “Appellees”). 

Appellants argue that the trial court erroneously applied the 1989 Dormant Mineral 

Act (“DMA”) because Appellees’ complaint was filed after the effective date of the 

2006 version of the Act. Pursuant to the 2006 DMA, Appellants contend that they 

have preserved their mineral interests by filing affidavits of preservation and through 

the existence of a tax parcel. Pursuant to Corban v. Chesapeake Exploration L.L.C., 

__ Ohio St.3d __, 2016-Ohio-5796, __ N.E.3d __ and Dodd v. Croskey, 143 Ohio 

St.3d 293, 2015-Ohio-2362, 37 N.E.3d 147, Appellants’ arguments have merit and 

the judgment of the trial court is reversed and remanded only for the purpose of 

determining damages, if any. 

Factual and Procedural History 

{¶2} This appeal concerns the ownership of minerals beneath approximately 

219 acres of land located in Wayne Township, Jefferson County. On May 26, 1924, 

Mary B. Harrah, Orville F. Harrah, Pauline Harrah, Frank W. Harrah, Parthenia 

Harrah, Charles W. Harrah, and Cornell Harrah conveyed the surface rights of the 

property to Dan and Anna Rensi. The deed included the following language: “Said 

grantors for themselves their heirs and assigns do hereby except and reserve onehalf interest of all oil and gas in and underlying said premises.” (5/26/24 Harrah 
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Deed.) The deed was recorded on February 27, 1942. On September 8, 1952, the 

surface rights were conveyed to Carl Kross, Appellees’ father. The deed referred to 

the exception found within the Harrah Deed. Appellees obtained the surface rights 

through a certificate of transfer filed on February 3, 2003. While Michael Kross was 

also given an interest in the property, he conveyed his interest to Joe Kross. 

{¶3} A tax parcel pertaining to the mineral interest was created in the name 

of Parthenia (Harrah) Duggar. While the parties do not know the exact date the 

parcel was created, it was clearly created prior to her death on February 29, 1964. 

The parcel remains of record. On June 30, 2011, Jefferson County filed a tax lien 

foreclosure on the parcel. However, the lien was dismissed after Appellants made a 

full payment. 

{¶4} On September 14, 2011, Appellees published notice of intent to declare 

the Harrah interests abandoned in a local newspaper. On November 2, 2011 and 

November 10, 2011, Appellees filed separate affidavits of abandonment. Appellants, 

each living in a different state, learned of the notice through a third party. In 

response, on November 14, 2011, several Harrah heirs filed affidavits of 

preservation. The affidavits were filed by: Jean Yvonne Ruff, Fredrick Simpson on 

behalf of himself and his siblings Lincoln Simpson and Polly McJessy, Scott Harrah 

as executor of the estate of James Harrah and on behalf of the estate, and Jean 

Yvonne Ruff on behalf of the testamentary trust of Parthenia (Harrah) Duggar. 

{¶5} On June 21, 2012, Appellees filed a declaratory judgment and quiet title 

complaint. On July 23, 2012, Appellants filed an answer and a counterclaim. On 
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May 31, 2013, Appellees filed a motion for summary judgment. Appellants 

responded by filing a “Reply Brief and Affidavit Contra to Plaintiff’s Motion for 

Summary Judgment” on July 1, 2013. On September 13, 2013, the trial court 

granted Appellees’ motion based on the 1989 DMA. This timely appeal followed. 

{¶6} The appeal was stayed pending the Ohio Supreme Court’s ruling on 

several related DMA cases. After the Ohio Supreme Court released Opinions on 

these matters, Appellants and Appellees each filed a position statement updating 

their respective briefs. 

Summary Judgment 

{¶7} 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). 
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{¶8} “[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. 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). 

{¶9} 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. 

ASSIGNMENT OF ERROR NO. 1 

BASED ON THE SUBSEQUENT DECISION [SIC] THIS APPEALS 

COURT IN DODD V. CROSKEY, THE COURT ERRED 1N GRANTING 

SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF-APPELLEES. 
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{¶10} Appellants present two issues within their first assignment of 

error. For ease of understanding, the issues will be addressed separately. 

2006 DMA 

{¶11} Appellants contend that the 2006 DMA controls the outcome of this 

matter because Appellees’ complaint was filed after June 30, 2006. Pursuant to the 

2006 DMA, Appellants argue that in order to declare mineral interests abandoned, 

two requirements must be met. First, the surface owner must comply with the notice 

requirements of R.C. 5301.56(E). Second, the surface owner must show that no 

savings event has occurred within the previous twenty years. 

{¶12} While Appellees now concede that Corban supports Appellants’ 

position, they continue to argue that Appellants waived any argument pertaining to 

the 1989 Act as they failed to raise the issue below. Because they failed to point out 

to the trial court the court’s error with relying on the 1989 version of the Act, 

Appellees claim, they cannot now contest the trial court’s erroneous application. 

Even if we find that the issue was preserved, Appellees argue that we must remand 

the matter because the trial court did not consider the affect of the 2006 DMA. 

{¶13} Contrary to Appellees’ assertion, Appellants preserved their 1989 DMA 

arguments. In Appellants’ motion for summary judgment, they argued that the cases 

cited by Appellees regarding the 1989 DMA had been appealed, and were of 

questionable precedent. Further, in making the argument that the 2006 DMA 

controlled in this matter, Appellants essentially argued that the provisions in the 1989 
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DMA were not automatic and self-executing. Hence, this record demonstrates that 

Appellants preserved their arguments in this regard. 

{¶14} The Ohio Supreme Court recently addressed whether the 1989 DMA 

applies to complaints filed after the June 30, 2006 effective date of the 2006 DMA. 

The Court held that: 

[A]s of June 30, 2006, any surface holder seeking to claim dormant 

mineral rights and merge them with the surface estate is required to 

follow the statutory notice and recording procedures enacted in 2006 by 

H.B. 288. These procedures govern the manner by which mineral 

rights are deemed abandoned and vested in the surface holder and 

apply equally to claims that the mineral interests were abandoned prior 

to June 30, 2006. 

Stalder v. Bucher, 7th Dist. No. 14 MO 0010, 2017-Ohio-725, ¶ 10, quoting Corban, 

supra, ¶ 31. 

{¶15} The Corban Court clearly held that the provisions contained in the 1989 

DMA were not self-executing and did not serve to automatically transfer ownership 

rights of dormant minerals by operation of law. Any attempt to declare mineral 

interests abandoned after June 30, 2006 must comply with the notice requirements of 

the 2006 DMA. Stalder at ¶ 10, citing Corban at ¶ 28. Appellees’ complaint was filed 

on June 21, 2012. Pursuant to Corban, the trial court erroneously conducted a 1989 

DMA analysis. 

Affidavit of Preservation 
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{¶16} Appellants contend that they timely filed affidavits to preserve their 

interests pursuant to R.C. 5301.56(C). While the affidavits were technically filed on 

the sixty-first day, Appellants urge that the trial court properly found that the filing was 

timely, because the sixtieth day was a Sunday. As the affidavits were timely filed and 

satisfied R.C. 5301.52, Appellants contend that they preserved their interests 

pursuant to Dodd, supra. 

{¶17} Appellees now concede that they cannot succeed under a 2006 DMA 

review. While maintaining their argument that Appellants waived application of the 

2006 DMA, Appellees admit that, pursuant to Dodd, this record shows that Appellants 

have preserved their interests if the 2006 DMA applies. 

{¶18} Although the trial court relied on the 1989 DMA in its ruling in this 

matter, the trial court alternatively considered and noted certain facts of record as 

they relate to the 2006 DMA. Specifically, the court stated: 

On September 14, 2011, Plaintiffs published their notice pursuant to 

R.C. 5301.56 seeking to reunite the outstanding one-half interest in the 

oil and gas with the other half interest and the surface. On November 

14, 2011, Defendants recorded four (4) separate preservation claims. 

Plaintiffs claim that Defendant’s filing date is one (1) day past the sixty 

(60) day grace period but November 13, 2011 was a Sunday and 

Defendants filed on the first business day thereafter. Their filing is 

timely. 

(9/13/13 J.E., p. 2.) 
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{¶19} Pursuant to Dodd, “a mineral-interest holder’s claim to preserve filed 

pursuant to R.C. 5301.56(H)(1)(a) is sufficient to preclude the mineral interests from 

being deemed abandoned if filed within 60 days after notice of the surface owner’s 

intent to declare those interests abandoned.” Id. at ¶ 37. In order to preserve their 

interests, a mineral holder’s claim to preserve must meet the requirements. The filing 

is in compliance with the statute if it: 

(a) States the nature of the mineral interest claimed and any recording 

information upon which the claim is based; 

(b) Otherwise complies with section 5301.52 of the Revised Code; 

(c) States that the holder does not intend to abandon, but instead to 

preserve, the holder's rights in the mineral interest. 

R.C. 5301.56(C)(1). 

{¶20} On November 14, 2011, Appellants filed four preservation claims. 

While the affidavits were filed on the sixty-first day as noted by the trial court, the 

sixtieth day was a Sunday and the filings were completed on the next business day. 

Each affidavit states the nature of the interest, includes all relevant recording 

information, complies with R.C. 5301.52, and states the holder’s intent to preserve 

their interests. As such, this record reflects that Appellants have preserved their 

interests pursuant to R.C. 5301.56(H)(1)(a), (C)(1). Accordingly, Appellants’ first 

assignment of error has merit and is sustained. 
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{¶21} Due to the trial court’s erroneous reliance on the 1989 DMA, it never 

addressed Appellants’ claim for damages. As this record shows that Appellants have 

preserved their interests, we remand the matter to allow the trial court to address the 

issue of whether Appellants are entitled to damages. 

ASSIGNMENT OF ERROR NO. 2 

THE TRIAL COURT ERRED IN NOT FINDING THAT THE 

DEFENDANTS-APPELLANTS' MINERAL INTERESTS WERE 

PRESERVED BY THE EXISTENCE OF A SEPARATE TAX PARCEL 

FOR SAID INTEREST. 

{¶22} Pursuant to R.C. 5301.56(B)(3), there are six savings events which 

prevent a mineral interest being eligible for abandonment if the event occurred within 

the twenty years preceding the notice of abandonment. They are: 

(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. 

(b) There has been actual production or withdrawal of minerals by the 

holder from the lands, from lands covered by a lease to which the 

mineral interest is subject, from a mine a portion of which is located 

beneath the lands, or, in the case of oil or gas, from lands pooled, 

unitized, or included in unit operations, under sections 1509.26 to 

1509.28 of the Revised Code, in which the mineral interest is 

participating, provided that the instrument or order creating or providing 
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for the pooling or unitization of oil or gas interests has been filed or 

recorded in the office of the county recorder of the county in which the 

lands that are subject to the pooling or unitization are located. 

(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, provided 

that an affidavit that states the name of the permit holder, the permit 

number, the type of permit, and a legal description of the lands affected 

by the permit has been filed or recorded, in accordance with section 

5301.252 of the Revised Code, in the office of the county recorder of 

the county in which the lands are located. 

(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. 

{¶23} In their original brief, Appellants argued that the trial court erroneously 

determined that a separate tax parcel created more than twenty years before the 

notice of abandonment was insufficient to constitute a savings event under R.C. 

5301.56(B)(3)(f). Appellants abandoned this argument in their subsequently filed 
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position statement. Regardless, this issue is moot because the record reveals that 

Appellants preserved their interests through a claim to preserve as discussed within 

their first assignment of error. 

Conclusion 

{¶24} Appellants contend that the trial court erroneously applied the 1989 

DMA instead of the 2006 DMA. Pursuant to Corban, Appellants are correct. 

Appellants argue that they have preserved their mineral interests here in compliance 

with the 2006 Act because they have proved the existence of two savings events: 

filing of claims to preserve and creation of a tax parcel. This record reveals that 

Appellants have preserved their interests pursuant to the 2006 DMA. As such, 

whether their pre-existing tax parcel would also constitute a savings event is moot. 

Accordingly, Appellants’ arguments have merit and the judgment of the trial court is 

reversed and remanded only for purposes of determining damages, if any. 

Donofrio, J., concurs. 

Robb, P.J., concurs.