[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as 

Albanese v. Batman, Slip Opinion No. 2016-Ohio-5814.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in 

an advance sheet of the Ohio Official Reports. Readers are requested 

to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 

65 South Front Street, Columbus, Ohio 43215, of any typographical or 

other formal errors in the opinion, in order that corrections may be 

made before the opinion is published. 

SLIP OPINION NO. 2016-OHIO-5814

ALBANESE, EXR., APPELLANT, v. BATMAN ET AL., APPELLEES. 

LIPPERMAN, APPELLANT, ET AL. v. BATMAN ET AL., APPELLEES. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as Albanese v. Batman, Slip Opinion No. 2016-Ohio-5814.] 

Dormant Mineral Act—R.C. 5301.56—Pursuant to Corban v. Chesapeake 

Exploration, L.L.C., 2006 version of Dormant Mineral Act applies—

Failure to comply with notice and affidavit requirements in R.C. 

5301.56(E)—Mineral interests not deemed abandoned. 

(Nos. 2015-0120 and 2015-0121—Submitted January 6, 2016—Decided 

September 15, 2016.) 

APPEALS from the Court of Appeals for Belmont County, No. 14 BE 22, 

2014-Ohio-5517, and No. 14 BE 2, 2014-Ohio-5500. 

__________________ 
SUPREME COURT OF OHIO

2 

KENNEDY, J. 

I. Introduction 

{¶ 1} In these discretionary appeals from the Seventh District Court of 

Appeals, we address two cases involving the application of the Ohio Dormant 

Mineral Act (“ODMA”), codified in R.C. 5301.56. Appellant Wayne Lipperman 

owns a parcel of real property in Belmont County, Ohio, and appellant Mark 

Albanese is the executor of the estate of James Albanese III, which owns a 

separate parcel of real property in Belmont County, Ohio. Appellees Nile and 

Katheryn Batman claim to hold an interest in the minerals underlying the 

properties owned by Lipperman and the estate of James Albanese. James 

Albanese, Lipperman, and the Batmans all leased their oil and gas rights in the 

properties at issue herein. 

{¶ 2} James Albanese and Lipperman filed separate actions seeking to 

quiet title to their respective properties, asserting that the severed mineral interests 

held by the Batmans had been abandoned. They also sought to cancel any oil and 

gas leases executed in relation to the Batmans’ interests in their properties. James 

Albanese died in May 2013, and Mark Albanese, as the executor of the estate, 

was substituted as the plaintiff in that case. 

{¶ 3} Applying this court’s holding in Corban v. Chesapeake Exploration, 

L.L.C., ____ Ohio St.3d ____, 2016-Ohio-5796, ___ N.E.3d ___, we hold that the 

2006 version of the ODMA applies in these cases and because neither James 

Albanese nor Lipperman complied with the notice and affidavit requirements in 

R.C. 5301.56(E), the mineral interests are preserved in favor of their holder, the 

Batmans. 

{¶ 4} Therefore, we affirm the judgment of the court of appeals in both 

cases, albeit for different reasons than those expressed in the court of appeals’ 

decisions. 
January Term, 2016 

3 

II. Facts and Procedural History 

A. The Batmans’ Mineral Interest 

{¶ 5} In 1952, Mayme Sulsberger died and left her interest in the mineral 

rights underlying the properties at issue in this case to her daughter, Frances 

Batman (“Frances”). On September 9, 1981, Frances executed an “Affidavit and 

Notice of Claim of Interest in Land” that referenced mineral interests that she held 

in properties in Belmont County, Ohio, and she recorded the affidavit in the office 

of the Belmont County Recorder that same month. Shortly thereafter, Frances 

died, and pursuant to the terms of her will, her mineral interests in the Belmont 

County properties passed to her son, Nile Batman. 

{¶ 6} In 1989, almost eight years after her death, Frances’s will was filed 

in both the Belmont County Probate Court and the Belmont County Recorder’s 

Office. 

B. Lipperman’s Property 

{¶ 7} Lipperman owns 41 acres of property in Pultney Township, Belmont 

County, Ohio. On April 7, 2006, Lipperman leased the oil and gas rights in his 

property to Reserve. In January 2007, Reserve assigned the Lipperman lease to 

Equity. In May 2008, Equity assigned its deep-oil-and-gas rights from the lease 

to PC Exploration, Inc., n.k.a. Phillips Exploration, Inc. 

{¶ 8} In November 2008, the Batmans leased their oil and gas rights in 

Lipperman’s property to Reserve. In January 2009, Reserve assigned the deepoil-and-gas rights from that lease to PC Exploration. 

C. The Albanese Property 

{¶ 9} The Albanese estate owns 104 acres of property in Smith Township, 

Belmont County, Ohio. In 2011, James Albanese leased oil and gas rights 

underlying his property to Hess Ohio Developments, L.L.C. 
SUPREME COURT OF OHIO

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{¶ 10} In October 2008, the Batmans leased their oil and gas rights from 

their mineral interests that underlie the Albanese property to Mason Dixon 

Energy, Inc. Mason Dixon Energy subsequently assigned its rights under the 

Batman lease to Hess Ohio Developments. 

D. Litigation 

{¶ 11} On January 20, 2012, James Albanese filed a quiet-title action 

against the Batmans, Mason Dixon Energy, and Hess Ohio Developments. On 

February 15, 2012, Lipperman filed a quiet-title action against the Batmans, 

Reserve, Equity, PC Exploration, and XTO Energy, Inc. (a parent company of 

Phillips Exploration). Lipperman and James Albanese sought to have the mineral 

interests underlying their properties that were held by the Batmans deemed 

abandoned and sought the cancellation of oil and gas leases (or assignment of 

those leases) entered into by the Batmans with the energy companies. 

{¶ 12} Hess Ohio Developments filed a motion for summary judgment in 

the Albanese case, and Reserve and Equity filed a motion for summary judgment 

in the Lipperman case. Holding that the 20-year look-back period under the 1989 

ODMA is a rolling period,1

 the trial court held that the 1981 filing of Frances’s 

affidavit and the 1989 filing of Frances’s will in Ohio both qualified as saving 

events under the 1989 ODMA, thereby preserving the Batmans’ mineral interest, 

as well as the leases (and assignment of leases) made therefrom, in both cases. 

 

1

 In Albanese v. Batman, the court of appeals described “rolling” versus “fixed” with regard to the 

look-back period in the 1989 version of the ODMA as follows: 

There are two views about the look-back period in the 1989 version of the 

[ODMA]. One view is that it is a rolling period. In generic terms, if the look-back 

period is rolling and there is a 20 year period where there is no savings event then 

the mineral interest is abandoned. The other view is that the look-back period is 

fixed. If it is fixed then the look-back period is twenty years preceding the 

enactment of the statute plus the three year grace period. Under Ohio’s statute this 

would mean from March 22, 1969 (twenty years prior to the date of enactment) to 

March 22, 1992 (the end of the three year grace period). 

2014-Ohio-5517, ¶ 23. 
January Term, 2016 

5 

Therefore, the trial court granted summary judgment in favor of the energy 

companies in both cases. 

{¶ 13} Mark Albanese, as executor, and Lipperman appealed from their 

respective cases. In each appeal, the court of appeals held that the trial court erred 

in holding that the 20-year look-back period is a rolling period. Instead, the court 

of appeals held that the 20-year look-back period under the 1989 ODMA is a 

fixed period from March 22, 1969, through March 22, 1989 (20 years before the 

effective date of the 1989 ODMA through the effective date of the 1989 ODMA), 

that is extended to March 22, 1992, by the statute’s three-year grace period. In 

each case, the court of appeals held that the 1981 filing of Frances Batman’s 

affidavit was a saving event under the 1989 ODMA that operated to preserve the 

severed mineral rights in Frances, and subsequently the Batmans, because it 

occurred within the 20 years prior to March 22, 1989. Consequently, neither 

opinion considered whether the filing of Frances’s will was a saving event under 

the 1989 ODMA. 

{¶ 14} Mark Albanese and Lipperman appealed to this court; Mark 

Albanese’s case was assigned case No. 2015-0120, and Lipperman’s case was 

assigned case No. 2015-0121. Each argued in his first proposition of law that the 

look-back period of the 1989 ODMA was a rolling period and in his second 

proposition of law that the recording of an out-of-state will is not a saving event. 

Lipperman argued in a third proposition of law that XTO Energy and Phillips 

Exploration have no standing to appear in case No. 2015-0121. 

{¶ 15} We accepted both cases but held proposition of law No. 1 in each 

case for our decision in case No. 2014-0803, Walker v. Shondrick-Nau. 143 Ohio 

St.3d 1403, 2015-Ohio-2747, 34 N.E.3d 131. 
SUPREME COURT OF OHIO

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III. Analysis 

A. The 2006 Version of the ODMA Applies 

{¶ 16} Because James Albanese and Lipperman filed their complaints 

after June 30, 2006, our holding in Corban v. Chesapeake Exploration, L.L.C., 

____ Ohio St.3d ____, 2016-Ohio-5796, __ N.E.3d __, is dispositive of both 

appeals and renders moot the issues raised in proposition of law Nos. 1 and 2. 

{¶ 17} Both James Albanese’s and Lipperman’s complaints were 

predicated upon the 1989 ODMA, and in resolving the matters, both the trial court 

and the court of appeals applied the 1989 ODMA. In Corban, however, this court 

was presented with the following state-law question certified by a federal court: 

“Does the 2006 version or the 1989 version of the ODMA apply to claims 

asserted after 2006 alleging that the rights to oil, gas, and other minerals 

automatically vested in the surface land holder prior to the 2006 amendments as a 

result of abandonment?” Id. at ¶ 1. We answered that the 2006 version of the 

ODMA applies to claims asserted after June 30, 2006, because the 1989 version 

of the ODMA was not self-executing. 

{¶ 18} Under the 1989 version of the ODMA, a severed mineral interest 

was “deemed abandoned and vested in the owner of the surface” if none of the 

following applied: (1) the mineral interest was in coal or was coal-related, (2) the 

mineral interest was held by the United States, the state, or any other political 

body described in the statute, or (3) a saving event occurred within the statutorily 

provided 20-year period. Sub.S.B. No. 223, 142 Ohio Laws, Part I, 981, 985-988 

(“S.B. 223”). Because “deemed” means only that the mineral interest is presumed 

abandoned, judicial action, typically by way of a quiet-title action, was required 

by the surface owner for a conclusive determination that the mineral interest was 

abandoned and vested in the surface owner. Corban at ¶ 25. 
January Term, 2016 

7 

{¶ 19} The 2006 version of the ODMA2 adds additional requirements. It 

provides, in R.C. 5301.56(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 interest is located an affidavit of abandonment that 

contains all of the information specified in division (G) of this 

section. 

(Emphasis added.) 

 

2

 The ODMA was amended again in 2014, 2013 Sub.H.B. No. 72, but the relevant language 

remains the same. 
SUPREME COURT OF OHIO

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{¶ 20} Therefore, under the 2006 ODMA, in order for a severed mineral 

interest to be deemed abandoned and vested in the surface owner (1) the mineral 

interest cannot be in coal, (2) the mineral interest cannot be held by certain 

entities, (3) no saving event can have occurred during the relevant period, and (4) 

the surface owner “shall” have served notice and filed the required affidavit. Use 

of the word “shall” means that the notice and affidavit obligations are mandatory, 

so a surface owner’s failure to provide notice to the mineral-rights holder would 

render further analysis under the ODMA unnecessary. The mineral rights cannot 

be deemed abandoned if the mineral-rights holder has not been provided notice. 

{¶ 21} This result is confirmed by looking at other parts of the ODMA. 

For example, the statutorily provided 20-year period looks back 20 years from the 

date of the service of notice required by R.C. 5301.56(E) to determine whether a 

saving event occurred that would preclude abandonment of the severed mineral 

interest. R.C. 5301.56(B)(3). Absent service of the notice, there is no date from 

which the look back can occur. Also, the 2006 ODMA specifically provides that 

notice and an affidavit are required before the mineral interest becomes “vested” 

in the surface owner. R.C. 5301.56(E). Accordingly, the surface owner’s service 

of the notice and filing of the affidavit are required under the 2006 ODMA, and if 

those requirements are not met, the severed mineral interest cannot be deemed 

abandoned and instead remains with the mineral-interest holder. 

{¶ 22} Therefore, because neither Lipperman nor James Albanese 

complied with the statutory notice and affidavit provisions found in R.C. 

5301.56(E), the severed mineral rights never vested in them, but remain with the 

Batmans. Because the 2006 version of the ODMA applies in these cases and 

Lipperman and James Albanese failed to comply with R.C. 5301.56(B) and (E), 

the first and second propositions of law are moot. 
January Term, 2016 

9 

B. Standing 

{¶ 23} Lipperman’s third proposition of law asserts that “XTO Energy, 

Inc. and Phillips Exploration, Inc., have no standing to appear in this case.” Not 

only does that proposition of law misconstrue the doctrine of standing by 

attempting to apply it to a defendant’s participation in an action, but the argument 

Lipperman makes under that proposition of law in his merit brief is not properly 

before the court, because he did not raise it in his memorandum in support of 

jurisdiction. 

{¶ 24} Standing relates to a party’s right to make a legal claim or seek 

judicial enforcement of a legal duty or right. Ohio Pyro, Inc. v. Ohio Dept. of 

Commerce, 115 Ohio St.3d 375, 2007-Ohio-5024, 875 N.E.2d 550, ¶ 27, citing 

Black’s Law Dictionary 1442 (8th Ed.2004). Standing to sue is necessary for 

invoking the jurisdiction of the common pleas court. Fed. Home Loan Mtge. 

Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, 

¶ 24. To have standing, the party bringing the action must assert a personal stake 

in the outcome of the action. Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 

2014-Ohio-4275, 21 N.E.3d 1040, ¶ 23. A plaintiff establishes standing by 

showing that she suffered an injury that is fairly traceable to the defendant’s 

conduct and that is likely to be redressed by the requested relief. Moore v. 

Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977, ¶ 22. 

{¶ 25} Lipperman—the plaintiff in one of the quiet-title actions here—

contends that certain named defendants lack “standing to appear in this case.” 

Reserve Energy Exploration Company, Equity Oil & Gas Funds, XTO Energy, 

Inc., and Phillips Exploration, Inc., are parties to this action because Lipperman 

named them as defendants in his quiet-title complaint; they have not asserted a 

claim for affirmative relief. Accordingly, the doctrine of standing does not apply 

to Reserve, Equity, XTO, and Phillips. And when Lipperman appealed the trial 

court’s entry of summary judgment, XTO and Phillips became appellees—and 
SUPREME COURT OF OHIO

10 

were entitled to participate in the appellate process—because they were parties in 

the trial court and because they were among the defendants in whose favor the 

trial court granted summary judgment. See In re Vacation of Twp. Rd. 114, 

Hancock Cty., 6 Ohio App.2d 73, 77, 216 N.E.2d 768 (3d Dist.1966) (“in every 

appeal, unless otherwise prescribed, the adversary parties in the original 

proceedings who are not parties appellant automatically become parties 

appellee”). 

{¶ 26} Furthermore, Lipperman’s third proposition of law fails for another 

reason. In his merit brief, Lipperman’s argument under his third proposition of 

law differs substantially from the argument he raised in his memorandum in 

support of jurisdiction. In his memorandum in support of jurisdiction, he simply 

stated that XTO and Phillips lack standing because prior to oral argument in the 

court of appeals, they filed a release of any interest in the lease entered into by 

appellees Nile and Katheryn Batman. Now Lipperman focuses on Reserve and 

Equity, not on XTO and Phillips. And instead of relying on the purported release, 

Lipperman now primarily argues that pursuant to Civ.R. 56(B), Reserve and 

Equity were not entitled either to move for summary judgment or to oppose 

Lipperman’s motion for summary judgment in the trial court because “[n]o claim 

was asserted against Reserve Energy or Equity Oil and Gas with regard to the 

ownership of the oil and gas underlying the property.”3

 Because Lipperman did 

not raise that argument in his memorandum in support of jurisdiction, it is not 

properly before this court. See In re Timken Mercy Med. Ctr., 61 Ohio St.3d 81, 

87, 572 N.E.2d 673 (1991). Therefore, we reject Lipperman’s third proposition of 

law. 

 

3

 The final sentence of Lipperman’s argument under his third proposition of law in his merit brief 

does state, “In addition, since the initiation of this litigation, both Reserve Energy and XTO 

released their leasehold interests in the subject real estate before the hearing before the Court of 

Appeals, and failed to disclose that fact to the Court or opposing counsel.” 
January Term, 2016 

11 

IV. Conclusion 

{¶ 27} This court’s decision in Corban, __ Ohio St.3d __, 2016-Ohio5796, __ N.E.3d __, is controlling in these cases. James Albanese and Lipperman 

filed their complaints after June 30, 2006, so pursuant to Corban, the 2006 

version of the ODMA applied to their cases. In order for a severed mineral 

interest to be deemed abandoned and vested in the surface owner under the 2006 

version of the ODMA, the owner of the surface rights must comply with R.C. 

5301.56(E), which requires the surface owner to serve the mineral-interest holder 

with notice of the owner’s intent to declare the mineral interest abandoned and to 

file an affidavit of abandonment in the county recorder’s office in the county in 

which the property is located. Because neither Lipperman nor James Albanese 

complied with these requirements, the severed interests in the oil and gas that 

underlie their properties held by the Batmans are preserved. 

{¶ 28} Therefore, we affirm the judgments of the court of appeals, albeit 

for different reasons than those stated in the court of appeals’ opinions. 

Judgments affirmed. 

O’CONNOR, C.J., and O’DONNELL, LANZINGER, and FRENCH, JJ., concur. 

PFEIFER, J., concurs in judgment only, with an opinion joined by O’NEILL, 

J. 

_________________ 

PFEIFER, J., concurring in judgment only. 

{¶ 29} I concur in the judgment of the majority but disagree with how it 

got there. The majority opinion is based upon this court’s decision in Corban v. 

Chesapeake Exploration, L.L.C., __ Ohio St.3d __, 2016-Ohio-5796, __ N.E.3d 

__. I dissented from the portion of the judgment in Corban that the majority 

relies on in this case. In Corban, I would have held that former R.C. 5301.56, the 

1989 version of the Ohio Dormant Mineral Act, Sub.S.B. No. 223, 142 Ohio 

Laws, Part I, 981 (“1989 ODMA”), automatically reunited mineral rights and 
SUPREME COURT OF OHIO

12 

surface rights in the owner of the surface property in the absence of any saving 

event in any 20-year period within the 1989 ODMA’s purview. The lead opinion 

in Corban states that the ODMA is not self-executing, that instead, “the surface 

holder was required to bring a quiet title action seeking a decree that the mineral 

rights had been abandoned in order to merge those rights into the surface estate.” 

Lead opinion at ¶ 40. Regardless, even under my interpretation of the 1989 

ODMA, the interests of appellees Nile and Katheryn Batman were preserved by 

two saving events: the 1981 recording of Frances Batman’s “Affidavit and Notice 

of Claim of Interest in Land” and the 1989 filing of Frances Batman’s will in the 

Belmont County Probate Court and the Belmont County Recorder’s Office. Thus, 

there was no 20-year period during the purview of the 1989 ODMA without some 

preservation of the Batman interest, and therefore, there was no reunification of 

the mineral rights with the surface rights. 

{¶ 30} We learned in oral argument that the root of the Batman interest 

came from bartering undertaken by Nile Batman’s great-great-grandfather, a 

dentist who traded dental care for interests in his patients’ mineral rights; he put 

them in dentures and they gave him indentures. Hopefully, there were no hard 

fillings. Now his patience with those mineral rights has paid off for his progeny, 

a crowning achievement, even if the prices for the commodities involved have 

receded somewhat from their crest. Somewhere, the good doctor is smiling, 

knowing that ancient fees owed for drilling and extractions have been paid many 

times over by fees paid for drilling and extraction. He wouldn’t care that the 1989 

ODMA has been rendered toothless. 

 O’NEILL, J., concurs in the foregoing opinion. 

_________________ 

Lancione, Lloyd & Hoffman Law Offices Co., L.P.A., Richard L. 

Lancione, and Tracey Lancione Lloyd, for appellants in both cases. 
January Term, 2016 

13 

Geiger, Teeple, Robinson & McElwee, P.L.L.C., and Bruce E. Smith, for 

appellees Nile E. and Katheryn Batman in both cases. 

Kincaid, Taylor & Geyer, Scott D. Eickelberger, William J. Taylor, David 

J. Tarbert, and Ryan H. Linn, for appellee Hess Ohio Developments, L.L.C., in 

case No. 2015-0120. 

Steptoe & Johnson, P.L.L.C., Lyle B. Brown, and J. Kevin West, for 

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

Company, in case No. 2015-0121. 

Zeiger, Tigges & Little, L.L.P., Marion H. Little Jr., and Christopher J. 

Hogan, for appellees XTO Energy, Inc., and Phillips Exploration, Inc., in case No. 

2015-0121. 

_________________