Carpenter v. Antero Resources Appalachian Corp.

[Cite as Carpenter v. Antero Resources Appalachian Corp., 

.]




             IN THE COURT OF APPEALS OF OHIO
                            SEVENTH APPELLATE DISTRICT
                                 MONROE COUNTY

                             DANFORD CARPENTER ET AL.,

                                       Plaintiffs-Appellants,

                                                    v.

      ANTERO RESOURCES APPALACHIAN CORPORATION ET AL.,

                        Defendants-Appellees/ Cross-Appellants.


                       OPINION AND JUDGMENT ENTRY
                                        Case No. 21 MO 0007


                                    Civil Appeal from the
                        Court of Common Pleas of Monroe County, Ohio
                                     Case No. 2017-297

                                        BEFORE:
                David A. D’Apolito, Gene Donofrio, Carol Ann Robb, Judges.


                                             JUDGMENT:
                                               Affirmed.


 Atty. George A. Barton, Barton and Burrows, LLC, 5201 Johnson Drive, Suite 110,
 Mission, Kansas 66205, and Atty. Beau W. Cross, Cross Law Office, LLC, 417 Main
 Street, Caldwell, Ohio 43724, for Plaintiffs-Appellants

 Atty. Gregory D. Russell, Atty. Peter A. Lusenhop, and Atty. Ilya Batikov, Vorys, Sater,
 Seymour and Pease LLP, 52 East Gay Street, P.O. Box 1008, Columbus, Ohio 43216,
 for Defendant-Appellee/ Cross Appellant Antero Resources Appalachian Corporation

 Atty. Daniel P. Corcoran, Atty. Kristopher O. Justice, and Atty. Adam J. Schwendeman,
 Theisen Brock, 424 Second Street, Marietta, Ohio 45750, for Defendant-Appellee/
 Cross Appellants Danny Offenberger et al.
                                                                                     –2–


                              Dated: December 15, 2022

 D’APOLITO, J.

      {¶1}   Appellants, Danford (“D.K.”) and Patsy Carpenter, (husband and wife), as
Trustees of the Danford and Patsy Carpenter Revocable Living Trust (“the Carpenters”),
appeal from six judgments of the Monroe County Court of Common Pleas, including
summary judgment rulings entered in favor of Appellees, Antero Resources Appalachian
Corp., et al. (individual defendants and “Antero”): (1) September 16, 2021 Judgment Entry
(Incorporating Findings of Fact and Conclusions of Law – granting Antero’s request for
prejudgment interest ($92,079.41) and attorney’s fees ($313,950.98); (2) June 7, 2021
Second Nunc Pro Tunc Amendment to July 10, 2020 Judgment Entry (Incorporating
Findings of Fact and Conclusions of Law); (3) May 4, 2021 Nunc Pro Tunc Judgment
Entry (Incorporating Findings of Fact and Conclusions of Law); (4) April 19, 2021
Judgment Entry (Incorporating Findings of Fact and Conclusions of Law); (5) August 20,
2020 Nunc Pro Tunc Amendment to July 10, 2020 Judgment Entry (Incorporating
Findings of Fact and Conclusions of Law); and (6) July 10, 2020 Judgment Entry
(Incorporating Findings of Fact and Conclusions of Law).
      {¶2}   On appeal, the Carpenters assert the trial court erred: (1) in finding they
breached their warranty of title to Antero under the 2013 Lease and in awarding damages
and attorney’s fees to Antero; (2) in granting 42 individual defendants’ motion for
summary judgment as to their ownership of a portion of the minerals in the 22.75 acre
portion of Property A and in finding that such mineral interests were not extinguished
under the Marketable Title Act (“MTA”); (3) in granting 31 individual defendants’ motion
for summary judgment as to their ownership of a portion of the minerals in Property C and
in finding that such mineral interests were not extinguished under the MTA; and (4) in
finding that they failed to exercise reasonable diligence to locate the holders of mineral
interests in the 198.75 acre tract prior to publishing their notices of abandonment under
the Ohio Dormant Minerals Act (“DMA”). In its cross-assignment of error, Appellees
Danny Offenberger, et al. (collectively the “Offenberger Group”), allege the trial court
erred: (1) in denying their motion for leave to amend their counterclaim to assert an
additional claim arising under the MTA; and (2) in denying their motion concerning title



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with respect to Property B under the MTA. In its conditional cross-assignment of error,
Antero asserts to the extent that the trial court erred in denying the Offenberger Group’s
motions for summary judgment concerning title with respect to Property B and Property
D under the MTA, then the court also erred in failing to award additional damages on
Antero’s breach of warranty claim against the Carpenters. Finding no reversible error,
we affirm.

                            FACTS AND PROCEDURAL HISTORY

        {¶3}    The Carpenters own the surface of a 198.75 acre farm in Seneca Township,
Monroe County, Ohio (the “Property”). Five tracts comprise the Property: Property A, a
40 acre portion and a 22.75 acre portion1; Property B, a 40 acre tract; Property C, a 73.25
acre tract2; and Property D, a 22.75 acre tract. Each tract is subject to reservations and
exceptions of oil and gas mineral and royalty rights made in the early 1900s (the “Mineral
Reservations”). The Mineral Reservations were made by Vincent G. Carpenter and other
members of the Carpenter family, including Theodore P. Carpenter (D.K. Carpenter’s
grandfather).
        {¶4}    In 2010, the Carpenters hired Attorney Cliff Sickler to assist them with
abandoning the Mineral Reservations through the DMA. Through Attorney Sickler, the
Carpenters published four notices of abandonment in the Monroe County Beacon as to
the 40 acre portion of Property A, Property B, Property C, and Property D and they
recorded four affidavits of abandonment. The Carpenters did not attempt to abandon the
Mineral Reservations under the 22.75 acre portion of Property A and their notice on
Property D did not refer to the Mineral Reservations at issue. The Carpenters directed
their published notices of abandonment to the original reserving parties, Vincent G.
Carpenter, et al. The Carpenters did not try to serve the holders of the mineral interest




1These portions of Property A were subject to two mineral reservations recorded in Deed Book 71 in the
Monroe County Recorder of Deeds dated in April 1908. In November 1952, the portions of Property A were
conveyed to D.K. Carpenter.
2 The deed which severed the minerals from the surface of Property C was the quit claim deed recorded in
April 1908. The interest in Property C was conveyed to the Carpenters through a Warranty Deed recorded
in January 1963 in Deed Book 142.


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by certified mail before publishing their abandonment notices nor did they name any of
the present-day holders.
       {¶5}   Because the heirs of Vincent G. Carpenter, et al. were also members of the
Carpenter family, the Carpenters personally knew many of them. One of the mineral
holder defendants, Jeffrey Stevens, celebrated Thanksgiving with the Carpenters.
Another, Gene West, a.k.a. V’non West, helped the Carpenters with farm work. Appellant
D.K. Carpenter attended school with defendant Shelba Wills. Appellant Patsy Carpenter
owned a “green book” that had a lot of information in it about the Carpenter family.
Notwithstanding these facts, the Carpenters’ notices of abandonment identified no
present holders of the Mineral Reservations.
       {¶6}   Three years after their attempted DMA abandonment, the Carpenters hired
Attorney Sickler to represent them in negotiating an oil and gas lease with Antero for their
Property. The parties, the Carpenters (as Lessors) and Antero (as Lessee) signed an oil
and gas lease on June 12, 2013 (the “Lease”). The Lease grants to Antero all of the oil
and gas under the 198.75 acre Property within certain geological formations.
       {¶7}   Specifically, Paragraph 1, “Grant of Lease,” provides that the Carpenters
conveyed to Antero “all of the oil, gas, liquid and gaseous hydrocarbons” in formations
“below the base of the Ohio Shale formation” under the “Leased Premises[;]” “explicitly
reserve[s]” to the Carpenters “all lands from the surface to the base of the Ohio Shale
Formation[;]” and also states that “Lessee expressly agrees not to drill any well on the
surface of the lands described herein.” (6/12/2013 Lease, Paragraph 1).
       {¶8}   Paragraph 2, “Description of the Land included in this Lease,” defines the
“Leased Premises,” as being the entire Property, i.e., Properties A, B, C, and D, totaling
198.75 acres. (Id., Paragraph 2). Additionally, Paragraph 7(D) states that Antero “may
withhold royalties without obligation to pay interest in the event of a bona fide dispute or
good faith question of royalty entitlement (either as to ownership or as to amount).”
       {¶9}   Paragraph 21, “Warranty of Title,” states:

       Lessor hereby warrants and agrees to defend the title to the lands and
       interest described in Paragraph 1, but if the interest of Lessor covered by
       this lease is expressly stated to be less than the entire fee or mineral estate,
       Lessor’s warranty shall be limited to the interest so stated. Lessor further


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      warrants that the lands hereby leased are not subject to any valid prior oil
      and gas leases. Lessee may purchase or lease the rights of any party
      claiming any interest in said land and exercise such rights as may be
      obtained thereby and Lessee shall not suffer any forfeiture nor incur any
      liability to Lessor by reason thereof. Lessee shall have the right at any time
      to pay for Lessor, any mortgage, taxes or other lien on said lands, in the
      event of default of payment by Lessor, and then be subrogated to the rights
      of the holder thereof. Any such payments made by Lessee for Lessor may
      be deducted from any amounts of money which may become due Lessor
      under this lease.

(Id., Paragraph 21).

      {¶10} Believing that it had leased all of the oil and gas under the Leased Premises,
Antero paid the Carpenters a bonus payment of $1,788,750.00 for signing the Lease,
based on $9,000 per acre for each of the total 198.75 acres of oil and gas rights in the
Properties. Antero included the Properties in two oil and gas development units, the
McDougal Unit and the D.K. Carpenter Unit, and drilled in all five horizontal wells (the
“Units”). The Units began producing oil and gas in 2014 and Antero began paying the
Carpenters all of the royalties attributable to the 198.75 acres included in the Lease.
Before receiving any royalties, the Carpenters signed Division Orders for the Units
certifying the ownership of their decimal interests in production or proceeds payable to
Antero. The decimal interests reflected the Carpenters as owning 100 percent of the oil
and gas in the leased 198.75 acres.
      {¶11} In September 2016, the Supreme Court of Ohio issued its decision in
Corban v. Chesapeake Exploration, L.L.C., 

, 

, holding
that the 1989 version of the DMA was not self-executing and that efforts to abandon
dormant mineral rights after June 30, 2006 had to proceed under the 2006 DMA. In the
fall of 2016, Antero suspended royalties due under the Lease while it studied the title to
the Properties to understand the extent of the Carpenters’ ownership. In April 2017,
Antero recalculated the Carpenters’ decimal interests. Antero then resumed paying the
Carpenters going back to the September 2016 accounting period and forward based on



Case No. 21 MO 0007
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their reduced decimal interests. Antero placed the remaining royalties into suspense and
later into an escrow account pursuant to an order by the trial court.
       {¶12} On October 3, 2017, the Carpenters filed a complaint against Antero and
over 150 individual defendants who had potential mineral interests in the Property alleging
three counts: count one, quiet title and declaratory judgment, asserting that the
Carpenters owned all the oil and gas rights under the Property through their abandonment
proceeding under the DMA; count two, alleging that Antero breached its oil and gas Lease
with the Carpenters by withholding royalties; and count three, also directed against
Antero, asserting claims for declaratory judgment, restitution, imposition of a constructive
trust, and a demand for equitable accounting relating to royalties the Carpenters claimed
were owed to them under the Lease.
       {¶13} On November 30, 2017, Antero filed an answer and counterclaim alleging
three counts: count one, declaratory judgment relating to the Carpenters’ entitlement to
royalties and other lease payments attributable to the disputed mineral interests; count
two, breach of warranty of title in the oil and gas Lease; and count three, interpleader
under Civ.R. 22 for royalties that it placed in suspense pending a resolution of their title
dispute.
       {¶14} Other individual defendants filed answers and asserted counterclaims that
the Carpenters had failed to obtain a valid abandonment of the individual defendants’
mineral interests under the DMA. The Offenberger Group, Donna M. Keaton et al. (the
“Keaton Group”), Raymond Long, Monica M. Howell, and Amanda Carpenter filed
answers to the Carpenters’ complaint. These parties, except Amanda Carpenter, also
asserted counterclaims for declaratory judgment and quiet title against the Carpenters
and Antero over their ownership, and cross-claims against Antero for trespass,
conversion, permanent injunction, and accounting arising from Antero’s production of oil
and gas from the Carpenters’ Property without permission from the defendants.
       {¶15} The Carpenters acquired the interests of certain named defendants and
dismissed them from the litigation. The Carpenters also moved for default judgment
against certain non-answering defendants which the trial court granted. At this point, the




Case No. 21 MO 0007
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remaining parties were the Carpenters, Antero, the Offenberger Group, the Keaton
Group, Raymond Long, Monica M. Howell, and Amanda Carpenter.3
        {¶16} On July 12, 2018, the Offenberger Group moved for joinder of additional
parties to the lawsuit which included the heirs, successors, and assigns of Fred O.
Sulsberger who had a record interest in a royalty reservation pertaining to one of the
subject properties, Property B. Following briefing, the trial court entered an agreed joinder
order on May 28, 2019 requiring the complaint to be served on certain identified
individuals (the “Sulsberger Group”) as potential successors-in-interest of Fred O.
Sulsberger. The Sulsberger Group filed an answer to the Carpenters’ complaint and
asserted a counterclaim against the Carpenters and a cross-claim against the Mineral
Owner Defendants and Antero for declaratory judgment and quiet title.
        {¶17} On June 3, 2019, the parties entered into a stipulation regarding the
ownership for each of the five tracts at issue in this case “‘without regard to any
abandonment or extinguishment under the [DMA] or the [MTA], not accounting for any
default or consent judgment entries being filed in this case, and not accounting for any
leasehold interest that is owned or that may be owned by [Antero].’” See (7/10/2020
Judgment Entry, p. 5).
        {¶18} The Offenberger Group filed a motion for summary judgment.                 The
Carpenters filed a cross-motion for summary judgment.
        {¶19} On July 10, 2020, the trial court determined that the Carpenters only own
112.73 net mineral acres in the 198.75 acre Leased Premises. The court held that the
Carpenters failed to successfully use the DMA to abandon the subject mineral interests.
The court found that the Carpenters missed at least 23 separate filings in the Monroe
County records showing the transfer of the disputed minerals. The court held that the
Carpenters failed to perform a reasonably diligent search for holders under R.C.
5301.56(E)(1) and did not include proper names and addresses of current holders in their
published abandonment notice under R.C. 5301.56(F)(1). Regarding the MTA, the court
denied summary judgment to the Offenberger Group because the claimants lacked
eligible roots of title.


3The Offenberger Group, the Keaton Group, Raymond Long, Monica M. Howell, and Amanda Carpenter
are (collectively the “Mineral Owner Defendants”).


Case No. 21 MO 0007
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        {¶20} Regarding the 22.75 acre portion of Property A, the trial court noted that
based on the Notices of Abandonment and the Affidavits of Abandonment, it is undisputed
that the Carpenters did not initiate a DMA abandonment with respect to any prior mineral
interest. The court found:

        Although the 22.75 acre portion of Property A was made subject to an oil
        and gas exception in the 1908 deed recorded at Deed Volume 71, Page
        571, [the Carpenters] did not serve a notice under division (E)(1) or file an
        affidavit under division (E)(2) of the DMA. Thus, the oil and gas rights with
        respect to the 22.75 acres of Property A have not been abandoned and
        vested in [the Carpenters] under the DMA.

(7/10/2020 Judgment Entry, p. 6).

        {¶21} Regarding Property D, the trial court held:

        It is also undisputed that [the Carpenters] did not initiate a DMA
        abandonment for Property D with respect to the 1908 oil and gas exception
        in Deed Volume 71, Page 571. [The Carpenters’] division (E)(1) notice and
        division (E)(2) affidavit for Property D did not refer to this deed or to any of
        the parties to the deed. Thus, the oil and gas rights excepted in Deed
        Volume 71, Page 571 for Property D have not been abandoned and vested
        in [the Carpenters] under the DMA.

(Id.)

        {¶22} The trial court also denied the Carpenters’ cross-motion for summary
judgment as untimely. The court found, on the merits, that the Carpenters failed to state
a valid MTA claim due to references in their chain of title to the disputed oil and gas
interests as well as muniments that constituted title transactions that preserved the
disputed minerals under R.C. 5301.49(D).          The court further found that periods of
constructive possession by certain record holders preserved those holders’ interests in
accordance with R.C. 5301.49(B).




Case No. 21 MO 0007
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       {¶23} Accordingly, the trial court dismissed the Carpenters’ quiet title and
declaratory judgment claims; granted judgment to the Offenberger Group on their
declaratory judgment claim that the Carpenters failed to serve a proper notice of
abandonment as required by R.C. 5301.56(E); and granted judgment to the Offenberger
Group regarding their quiet title claim in the proportions set out in the order. The court
modified the July 10, 2020 judgment through nunc pro tunc entries filed on August 20,
2020 and June 7, 2021.
       {¶24} Antero filed a motion for summary judgment against the Carpenters on the
parties’ competing claims over their rights and obligations under their oil and gas Lease.
The Carpenters opposed the motion arguing that under Paragraph 21 of the Lease, they
only warranted title to the mineral ownership which the trial court ultimately indicated they
owned. On April 19, 2021 and May 4, 2021 (Nunc Pro Tunc), the trial court found in favor
of Antero. The court noted that the Carpenters’ Lease conveyed “all of the oil, gas, liquid
and gaseous hydrocarbons” under the Properties and that the Lease further allowed
Antero to “withhold royalties without obligation to pay interest in the event of a bona fide
dispute or good faith question of royalty entitlement (either as to ownership or as to
amount).” (5/4/2021 Nunc Pro Tunc Judgment Entry, p. 7). The court reiterated its
findings that the Carpenters owned only 112.73 acres out of the 198.75 comprising the
Properties or just over 56 percent of the fee rights with the Mineral Owner Defendants
owning the remainder. Accordingly, the court found Antero did not breach the Carpenters’
Lease when it suspended the disputed portion of the Carpenters’ royalties.
       {¶25} The trial court found for Antero on its breach of warranty counterclaim. The
court noted that the Carpenters “warranted title to ‘the lands and interests described in
Paragraph 1,’ being all of the oil and gas under the Properties[.]” (Id. at p. 9). The court
also found that Antero was constructively evicted from the Lease as to the portion of the
Property that the Carpenters did not in fact own according to the July 10, 2020 Judgment
Entry. The court found that Antero overpaid the Carpenters by $2,478,233.95 between
bonus and royalties. Having resolved the parties’ lease obligations and the disposition of
royalties, the court held that the Carpenters’ claims for declaratory judgment, restitution,
equitable accounting, and constructive trust were moot.




Case No. 21 MO 0007
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       {¶26} Following a hearing, on September 16, 2021, the trial court awarded
Antero’s request for prejudgment interest ($92,079.41) and attorney’s fees ($313,950.98).
By the time the court entered this judgment, all other claims between all the other parties
had been either dismissed or decided.
       {¶27} The Carpenters filed this appeal and raise four assignments of error. The
Offenberger Group filed a cross-appeal and raise two cross-assignments of error. Antero
conditionally cross-appealed and raises a single, conditional cross-assignment of error.

                     SUMMARY JUDGMENT STANDARD OF REVIEW

       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., 

,
       

 (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., 

, 

 (1977). Whether a fact is ‘material’
       depends on the substantive law of the claim being litigated. Hoyt, Inc. v.
       Gordon & Assoc., Inc., 

, 

 (8th
       Dist.1995).

       ‘(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, 

, 

 (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. 

, 662 N.E.2d



Case No. 21 MO 0007
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      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., 

, 

 (8th
      Dist.1997).

      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, 

, 

.

Doe v. Skaggs, 7th Dist. Belmont No. 18 BE 0005, 

.

                          DORMANT MINERAL INTERESTS

      At common law, mineral rights severed from the surface estate were not
      subject to abandonment or termination for the failure to produce oil or gas
      or to extract other minerals. 1A Summers, The Law of Oil and Gas, Section
      8.4, at 139 (3d Ed.2004). Abandonment of an interest in real property
      required proof of the owner’s intent to abandon it, and it therefore could not
      be presumed from mere nonuse. Gill v. Fletcher, 

, 305, 

 (1906); Kiser v. Logan Cty. Bd. of Commrs., 

, 131,
      

 (1911); W. Park Shopping Ctr., Inc. v. Masheter, 

, 

 (1966); Beer v. Griffith, 

,
      

 (1980).

      Over time, mineral rights were fractionalized through devise, descent, and
      conveyance, and parties seeking to develop a mineral interest often had
      difficulty identifying and locating its owners. See generally Dodd v. Croskey,
      

, 

, 

; Van Slooten v.
      Larsen, 

, 

 (1980); 1A Summers, The
      Law of Oil and Gas, Section 8.4, at 139-140.


Case No. 21 MO 0007
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.

                             THE MARKETABLE TITLE ACT

      The General Assembly enacted the Marketable Title Act, R.C. 5301.47 et
      seq., in 1961, Am.H.B. No. 81, 129 Ohio Laws 1040, to extinguish interests
      and claims in land that existed prior to the root of title, with “the legislative
      purpose of simplifying and facilitating land title transactions by allowing
      persons to rely on a record chain of title.” R.C. 5301.55. This legislation
      provides that marketable record title—an unbroken chain of title to an
      interest in land for 40 years or more, R.C. 5301.48—“shall be held by its
      owner and shall be taken by any person dealing with the land free and clear
      of all interests, claims, or charges whatsoever, the existence of which
      depends upon any act, transaction, event, or omission that occurred prior
      to the effective date of the root of title.” R.C. 5301.50. Marketable record
      title therefore “operates to extinguish” all other prior interests, R.C.
      5301.47(A), which “are hereby declared to be null and void,” R.C. 5301.50.

      When initially enacted, the Marketable Title Act did not “bar or extinguish
      any right, title, estate, or interest in and to minerals, and any mining or other
      rights appurtenant thereto or exercisable in connection therewith.” Former
      R.C. 5301.53(E), 129 Ohio Laws at 1046. However, the General Assembly
      amended former R.C. 5301.53 and former R.C. 5301.56 in 1973 “to enable
      property owners to clear their titles of disused mineral interests.” Am.S.B.
      No. 267, 135 Ohio Laws, Part I, 942-943. Thus, the Marketable Title Act
      extinguished oil and gas rights by operation of law after 40 years from the
      effective date of the root of title unless a saving event preserving the interest
      appeared in the record chain of title—i.e., the interest was specifically
      identified in the muniments of title in a subsequent title transaction, the
      holder recorded a notice claiming the interest, or the interest “(arose) out of
      a title transaction which has been recorded subsequent to the effective date
      of the root of title.” R.C. 5301.48 and 5301.49.




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.

                         THE 1989 DORMANT MINERAL ACT

      The General Assembly again amended the Marketable Title Act in 1989
      when it enacted the Dormant Mineral Act, Sub.S.B. No. 223, 142 Ohio
      Laws, Part I, 981, 985-988 (“S.B. 223”), “to provide a method for the
      termination of dormant mineral interests and the vesting of their title in
      surface owners, in the absence of certain occurrences within the preceding
      20 years.” 142 Ohio Laws, Part I, at 981.

      The 1989 law, codified in former R.C. 5301.56, stated: “Any mineral interest
      held by any person, other than the owner of the surface of the lands subject
      to the interest, shall be deemed abandoned and vested in the owner of the
      surface,” unless (a) the mineral interest was related to coal, (b) the interest
      was held by the United States, the state of Ohio, or another political body
      described in the statute, or (c) one or more of the following saving events
      had occurred within the preceding 20 years:

      (i) 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;

      (ii) 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, 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 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;




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      (iii) The mineral interest has been used in underground gas storage
      operations by the holder;

      (iv) 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;

      (v) A claim to preserve the interest has been filed in accordance with
      division (C) of this section;

      (vi) 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.

      Former R.C. 5301.56(B)(1), S.B. 223, 142 Ohio Laws, Part I, at 985, 986-
      987.

      Notably, in contrast to R.C. 5301.47(A) and 5301.50 of the Marketable Title
      Act, the 1989 law did not use the word “extinguish,” nor did it declare
      dormant mineral interests “null and void.” Rather, it provided that dormant
      mineral interests “shall be deemed abandoned and vested in the owner of
      the surface.” The word ‘deem’ means “(t)o treat (something) as if (1) it were
      really something else, or (2) it has qualities that it does not have.” Black’s
      Law Dictionary 504 (10th Ed.2014).

      In enacting the 1989 law, the General Assembly created a conclusive
      presumption by establishing that a mineral rights holder had abandoned a
      severed mineral interest if the 20 year statutory period passed without a
      saving event. The statute remedied the difficulties faced by a surface owner
      seeking to quiet title to a dormant mineral interest, an action that requires


Case No. 21 MO 0007
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      proof that the mineral rights holder—who may not be locatable or
      identifiable from land records—had abandoned and relinquished that
      interest. At common law, such an action would have failed absent proof of
      the property owner's subjective intent. See Beer, 

, 

. Thus, by providing a conclusive presumption that the mineral
      interest had been abandoned in favor of the surface owner if the holder
      failed to take timely action to preserve it, the legislature provided an
      effective method of terminating abandoned mineral rights through a quiet
      title action.

.

             THE 2006 AMENDMENT TO THE DORMANT MINERAL ACT

      The 2006 amendment to R.C. 5301.56(B) provides that a dormant mineral
      interest “shall be deemed abandoned and vested in the owner of the surface
      of the lands subject to the interest if the requirements established in division
      (E) of this section are satisfied.” 2006 Sub.H.B. No. 288 (“H.B. 288”).

      R.C. 5301.56(E) directs the surface holder to give advance notice to the
      mineral rights holder, allowing it an opportunity to preserve its mineral rights
      from being deemed abandoned and merged with the surface estate. R.C.
      5301.56(E), (F), and (G). If neither a claim to preserve the interest nor an
      affidavit proving that a saving event occurred within the preceding 20 years
      is timely recorded, then the surface holder may record a notice that the
      mineral interest has been abandoned, and “the mineral interest shall vest in
      the owner of the surface of the lands formerly subject to the interest, and
      the record of the mineral interest shall cease to be notice to the public of the
      existence of the mineral interest or of any rights under it.” R.C. 5301.56(H).
      This statute therefore operates to establish the surface owner’s marketable
      record title in the mineral estate.

.




Case No. 21 MO 0007
                                                                                          – 16 –


                             ASSIGNMENT OF ERROR NO. 1

       THE TRIAL COURT ERRED IN FINDING THAT THE APPELLANTS
       BREACHED THEIR WARRANTY OF TITLE TO APPELLEE ANTERO
       RESOURCES APPALACHIAN CORP. (“ANTERO”) IN PARAGRAPH 21
       OF THE 2013 LEASE, AND IN AWARDING DAMAGES AND
       ATTORNEYS’ FEES TO ANTERO ON THAT CLAIM.

       {¶28} In their first assignment of error, the Carpenters argue the trial court erred
in granting summary judgment to Antero on its breach of warranty claim and that the entire
award of damages and attorneys’ fees must be reversed. The Carpenters stress that
they did not breach their warranty of title under Paragraph 21 of the 2013 Lease. The
Carpenters claim the contractual language reflects they did not warrant that they held title
to all of the minerals which they leased to Antero.
       {¶29} As stated, this court will review a trial court’s decision to grant summary
judgment de novo. 

. However, an abuse of discretion standard
applies to a trial court’s award of attorney’s fees. Spires v. Oxford Mining Co., LLC, 7th
Dist. Belmont No. 17 BE 0002, 

.

       An abuse of discretion is more than mere error of law or judgment; rather,
       it   involves    an     unreasonable,      arbitrary,    or    unconscionable
       decision. Blakemore v. Blakemore, 

, 

       (1983). It is for the trial court to ascertain whether the rate per hour and the
       number of hours expended were reasonable and to work up or down from
       that number using various factors as the court sees fit. Bittner [v. Tri-County
       Toyota, Inc.], 

, 

 [(1991)]. “Unless the
       amount of fees determined is so high or so low as to shock the conscience,
       an appellate court will not interfere.” 

, 

.

.

       Oil and gas leases are contracts, and therefore, “‘(t)he rights and remedies
       of the parties to an oil or gas lease must be determined by the terms of the
       written instrument.’” Lutz v. Chesapeake Appalachia, L.L.C., 148 Ohio St.3d


Case No. 21 MO 0007
                                                                                         – 17 –


      524, 

, 

, quoting Harris v. Ohio Oil Co.,
      

, 129, 

 (1897). “It is a well-known and established
      principle of contract interpretation that ‘(c)ontracts are to be interpreted so
      as to carry out the intent of the parties, as that intent is evidenced by the
      contractual language.’” Lutz at ¶ 9, quoting Skivolocki v. E. Ohio Gas Co.,
      

, 

 (1974), paragraph one of the syllabus.

      The burden of proof with respect to an oil and gas lease case is not
      controlled by substantive oil and gas law, but, rather, by civil
      procedure. Pfalzgraf v. Miley, 7th Dist. Monroe, 

, 

, reconsideration denied, 7th Dist. Monroe No. 16 MO
      0005, 

, 

, and appeal not allowed, 

, 

, 

 (2018). The party who
      asserts a claim in an oil and gas case carries the burden of proof, just as in
      any other civil case. Id. at ¶ 45.

Christman v. Condevco, Inc., 7th Dist. Monroe No. 19 MO 0008, 

.

      {¶30} Again, Paragraph 1, “Grant of Lease,” provides that the Carpenters
conveyed to Antero “all of the oil, gas, liquid and gaseous hydrocarbons” in formations
“below the base of the Ohio Shale formation” under the “Leased Premises[.]” (6/12/2013
Lease, Paragraph 1).
      {¶31} Paragraph 2, “Description of the Land included in this Lease,” defines the
“Leased Premises,” as being the entire Property, i.e., Properties A, B, C, and D, totaling
198.75 acres. (Id., Paragraph 2).
      {¶32} Paragraph 21, “Warranty of Title,” states:

      Lessor hereby warrants and agrees to defend the title to the lands and
      interest described in Paragraph 1, but if the interest of Lessor covered by
      this lease is expressly stated to be less than the entire fee or mineral estate,
      Lessor’s warranty shall be limited to the interest so stated. Lessor further
      warrants that the lands hereby leased are not subject to any valid prior oil
      and gas leases. Lessee may purchase or lease the rights of any party



Case No. 21 MO 0007
                                                                                        – 18 –


       claiming any interest in said land and exercise such rights as may be
       obtained thereby and Lessee shall not suffer any forfeiture nor incur any
       liability to Lessor by reason thereof. Lessee shall have the right at any time
       to pay for Lessor, any mortgage, taxes or other lien on said lands, in the
       event of default of payment by Lessor, and then be subrogated to the rights
       of the holder thereof. Any such payments made by Lessee for Lessor may
       be deducted from any amounts of money which may become due Lessor
       under this lease.

(Id. at Paragraph 21).

       {¶33} The Carpenters could have limited the Lease’s description of the Leased
Premises to something less than all the oil and gas. They did not. The Carpenters could
have also refused bonus and royalty payments on the interests that they did not own.
They did not.
       {¶34} The foregoing lease language establishes that the Carpenters leased all the
oil and gas in certain depths to all 198.75 acres of their Property to Antero and also
warranted that oil and gas through Paragraph 21. The purpose of the warranty clause is
to protect Antero against defects in the Carpenters’ title. The Carpenters breached that
warranty when the trial court held that the Carpenters only owned, and thus could only
lease to Antero, just over one-half of the mineral rights in the 198.75 acres.            “‘In
interpreting a contract, a court must give effect to the words used, not insert new words.’”
Fendley v. Wright State Univ., 10th Dist. Franklin No. 18AP-113, 

,
quoting Cleveland Elec. Illuminating Co. v. Cleveland, 

, 

 (1988).
       {¶35} A warranty of title “‘is an undertaking by the warrantor that on the failure of
the title which the deed purports to convey, either for the whole estate, or for a part only,
by the setting up of a superior title, that he will make compensation in money for the loss
sustained by such failure.’” People’s Sav. Bank Co. v. Parisette, 

,

 (1903), quoting King v. Kerr’s Adm’rs, 

 (1831); see also
Bd. of Edn. Toronto City Schools v. American Energy Utica, LLC, 7th Dist. 18 JE 0025,

, ¶ 43. A “warranty clause,” in turn, is:



Case No. 21 MO 0007
                                                                                      – 19 –


       1. A contractual clause containing a warranty. 2. Oil & gas. A provision in
       an oil-and-gas lease by which the lessor guarantees that title is without
       defect and agrees to defend it. If the warranty is breached, the lessor may
       be held liable to the lessee to the extent that the lessor has received
       payments under the lease.

Black’s Law Dictionary, (11th Ed.2019).

       {¶36} Here, the Carpenters agreed not only to defend the title, but also warranted
that title and, therefore, agreed to make compensation in money for the loss sustained by
the title’s failure. The Carpenters’ failure to clear their title led to a judgment for the
Mineral Owner defendants. That judgment constructively evicted the Carpenters, and
Antero as their lessee, from the portions of the oil and gas that the Carpenters did not
own. A grantor breaches a warranty of title when there is an actual or constructive eviction
of the warrantee. See 

.
       {¶37} The Lease’s proportionate reduction language contained in Paragraphs 9
and 30 are coextensive with the warranty clause in Paragraph 21.            The language
permitted Antero, upon discovering that the Carpenters may not own all the oil and gas
that they leased, to pay the Carpenters royalties on what Antero understood the
Carpenters actually owned without breaching its obligations under the royalty clause.
Antero did just that and placed the remaining royalties into a suspense account and later
into escrow with the court.
       {¶38} The trial court awarded Antero monetary damages for the Carpenters’
breach of their warranty of title consisting of overpayments Antero made to the Carpenters
in view of their actual ownership in the Property and attorney’s fees. The Carpenters only
challenge the court’s award of attorney’s fees. The Carpenters claim that nothing in the
warranty clause expressly permits recovering attorney’s fees and that the Lease does not
expressly mention the shifting of attorney’s fees. However, the Carpenters contracted for
a warranty clause which includes attorney’s fees as a component of damages upon
breach. See Schmiehausen v. Zimmerman, 6th Dist. Ottawa No. OT-04-042, 2005-Ohio-
3363, ¶ 7 (“One well defined and long established exception is that when there is a proper
award of exemplary or punitive damages, reasonable counsel fees may be awarded.”



Case No. 21 MO 0007
                                                                                        – 20 –


(Citations omitted). “Another equally well established exception, however, is that a
grantee of a deed with general warranty covenants may be entitled to recover the costs,
including attorney fees, expended in defense of the title conveyed with such covenants.”)
       {¶39} Thus, a warrantee may recover attorney’s fees expended in litigation with
third parties to defend the warranted title. This is true when, as in this case, the warrantee
incurs attorney’s fees in litigation with others as a result of the warrantor’s breach. See
Hollon v. Abner, 1st Dist. Hamilton No. C960182, 

, *4 (Aug. 29, 1997)
(“‘where the wrongful act of the defendant has involved the plaintiff in litigation with others
or placed him in such relation with others as makes it necessary to incur expense to
protect his interest, such costs and expenses, including attorneys’ fees, should be treated
as the legal consequences of the original wrongful act and may be recovered as
damages.’”) The Carpenters have failed to show that the trial court’s decision to award
attorney’s fees to Antero was an abuse of discretion.
       {¶40} The Carpenters’ first assignment of error is without merit.

                             ASSIGNMENT OF ERROR NO. 2

       THE TRIAL COURT ERRED IN GRANTING FORTY-TWO INDIVIDUAL
       DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AS TO THEIR
       OWNERSHIP OF A PORTION OF THE MINERALS IN THE 22.75 ACRE
       PORTION OF PROPERTY A, AND IN FINDING THAT SUCH MINERAL
       INTERESTS WERE NOT EXTINGUISHED AS OF NOVEMBER 20, 1992
       UNDER THE MARKETABLE TITLE ACT (“MTA”).

                             ASSIGNMENT OF ERROR NO. 3

       THE TRIAL COURT ERRED IN GRANTING THIRTY-ONE INDIVIDUAL
       DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AS TO THEIR
       OWNERSHIP OF A PORTION OF THE MINERALS IN PROPERTY C,
       AND IN FINDING THAT SUCH MINERAL INTERESTS WERE NOT
       EXTINGUISHED AS OF JANUARY 15, 2003 UNDER THE MTA.




Case No. 21 MO 0007
                                                                                      – 21 –


       {¶41} In their second assignment of error, the Carpenters contend the trial court
erred in determining that 42 of the individual defendants own mineral interests in the 22.75
acre tract of Property A which were not extinguished under the MTA as of November 20,
1992. The Carpenters stress that because the 1952 deed contains no reference to any
prior mineral reservation in the 22.75 acre portion of Property A, the R.C. 5301.49(A)
exception does not apply to preserve any individual defendants’ mineral interest in the
22.75 acre portion of Property A from extinguishment under the MTA. The Carpenters
further stress that because the trial court erred in applying the R.C. 5301.49(A) exception
to preserve the mineral interests of the 79 individual defendants in the 22.75 acre portion
of Property A, the court further erred in finding the Carpenters only owned 60.99636243
percent of the mineral interests in the 22.75 acre portion of Property A, (i.e., they claim
they instead own 82.23148146 percent).
       {¶42} In their third assignment of error, the Carpenters allege the trial court erred
in ruling that 31 of the individual defendants own mineral interests in Property C which
were not extinguished under the MTA as of January 15, 2003.               Specifically, the
Carpenters maintain the trial court erred in finding that the 1963 deed contained
references to certain oil and gas reservations which were sufficient to trigger the
application of R.C. 5301.49(A) and to preserve the individual defendants’ mineral
ownership in Property C from extinguishment under the MTA. The Carpenters further
maintain that because the trial court erred in applying the R.C. 5301.49(A) exception to
preserve the mineral interests of the 68 individual defendants in Property C, the court
additionally erred in finding the Carpenters only owned 67.68287037 percent of the
mineral interests in Property C, (i.e., they claim they instead owned 82.23148118
percent).
       {¶43} Because the Carpenters’ second and third assignments of error are
interrelated, as they both allege the trial court erred regarding the MTA, we will address
them together.
       {¶44} Preliminarily, this court stresses that the Carpenters did not assert a claim
under the MTA in their complaint. The Carpenters also never asked the trial court for
leave to amend their complaint in order to assert such a claim. Rather, the Carpenters
attempted to assert an entirely new claim arising under the MTA for the first time in an



Case No. 21 MO 0007
                                                                                          – 22 –


untimely motion (their cross-motion for summary judgment) which was filed more than
two and one-half years after their complaint was filed. The Offenberger Group repeatedly
objected to the assertion of this new MTA claim. Because the MTA claim was not properly
pled or timely asserted, it should not have been considered by the trial court.
       {¶45} “‘A new claim cannot be asserted by motion but must be asserted by
amended complaint.’” Hartline v. Atkinson, 7th Dist. Monroe No. 20 MO 0006, 2020-Ohio-
5606, ¶ 41, quoting Wright v. Sears, Roebuck & Co., 10th Dist. Franklin No. 83AP-153,

, *2 (Aug. 9, 1983). Because the Carpenters never filed an amended
complaint regarding their MTA claim, the trial court should not have ruled on it. 

Accordingly, this court will not address the Carpenters’ MTA arguments as they were not
properly raised in the trial court. Id. at ¶ 42.
       {¶46} In any event, the trial court did not err in denying the Carpenters’ untimely
cross-motion for summary judgment.          Specifically, considering the merits, the court
determined:

       Plaintiffs filed an untimely cross Motion for Summary Judgment concerning
       title on April 30, 2020. In their Motion, Plaintiffs asserted for the first time
       that they have marketable title to the oil and gas underlying the 22.75 acre
       portion of Property A, Property C, and Property D.

       Plaintiffs’ Motion is denied. This Court finds that there are references in
       Plaintiffs’ Root of Title for the 22.75 acre portion of Property A, Property C,
       and Property D, and in the subsequent muniments, to certain prior oil and
       gas interests and reservations. Since these references made Plaintiffs
       aware of the existence of the prior oil and gas reservations affecting the
       property, these interests are inherent in Plaintiffs’ record chain of title and
       are therefore preserved under R.C. 5301.49(A).

       There are also additional exceptions that would preserve Defendants’
       interests in the oil and gas, including a number of filed or recorded title
       transactions by which the oil and gas interests would have been conveyed
       and out of which the oil and gas interests would have arisen. The Seventh



Case No. 21 MO 0007
                                                                                                       – 23 –


        District has held that an instrument may affect an interest in land, and may
        save an interest from being extinguished under the MTA, even if the
        instrument does not identify or describe the interest or the land affected
        thereby. See Warner v. Palmer, 7th Dist. Belmont No. 18BE0012, 2019-
        Ohio-4078, ¶ 25.

        The sixth, seventh, eighth, tenth, eleventh, twelfth, thirteenth, fifteenth,
        seventeenth, nineteenth, twentieth, twenty-first, and twenty-second title
        transactions listed above are within the chain of title * * *. So, even if
        Plaintiffs had marketable title to one or more properties in this case, the
        interests in the chain of title for these persons would be preserved under
        R.C. 5301.49(D) based on each title transaction that is recorded
        subsequent to Plaintiffs’ Root of Title.

        ***

        In this case, there are periods of possession by certain record holders * * *.
        Under R.C. 5301.49(B), these periods of possession preserve the oil and
        gas interests held by such persons who were in possession at the time
        when marketability was being determined for each property. * * *

        Based on all of the foregoing, * * * Plaintiffs’ Cross Motion for Summary
        Judgment is denied.

(7/10/2020 Judgment Entry, p. 15-17).

        {¶47} The MTA has not extinguished the Offenberger Group’s rights in the oil and
gas underlying the 22.75 acre portion of Property A and Property C. The Mineral Interests
are preserved by title transactions under R.C. 5301.49(D).4 A title transaction involving


4  R.C. 5301.49 states, “Such record marketable title shall be subject to:” “(D) Any interest arising out of a
title transaction which has been recorded subsequent to the effective date of the root of title from which the
unbroken chain of title or record is started; provided that such recording shall not revive or give validity to
any interest which has been extinguished prior to the time of the recording by the operation of section
5301.50 of the Revised Code[.]”



Case No. 21 MO 0007
                                                                                                       – 24 –


the interest of one mineral holder preserves the entire mineral interest for all holders. See
Hartline, supra.       Alternatively, the reference to an oil and gas reservation in the
Carpenters’ root of title preserves the oil and gas for the 22.75 acre portion of Property A
and Property C under R.C. 5301.49(A).5
        {¶48} The Carpenters’ second and third assignments of error are without merit.

                                 ASSIGNMENT OF ERROR NO. 4

        THE TRIAL COURT ERRED BY FINDING, AS A MATTER OF LAW, THAT
        THE APPELLANTS FAILED TO EXERCISE REASONABLE DILIGENCE
        TO LOCATE THE HOLDERS OF MINERAL INTERESTS IN THE 198.75
        ACRE       TRACT        PRIOR       TO    PUBLISHING           THEIR      NOTICES         OF
        ABANDONMENT UNDER THE OHIO DORMANT MINERALS ACT
        (“DMA”),         AND        THAT         APPELLANTS’             ATTEMPTED             DMA
        ABANDONMENT WAS THEREFORE INVALID.

        {¶49} In their fourth assignment of error, the Carpenters allege the trial court erred
in granting summary judgment to the individual defendants on their claim that the
individual defendants’ mineral interests in the 40 acre portion of Property A, and in
Properties B and C, were not abandoned pursuant to the DMA.6 The Carpenters also
contend the trial court erred in holding that they did not conduct a reasonably diligent



5 R.C. 5301.49 states, “Such record marketable title shall be subject to:” “(A) All interests and defects which
are inherent in the muniments of which such chain of record title is formed; provided that a general reference
in such muniments, or any of them, to easements, use restrictions, or other interests created prior to the
root of title shall not be sufficient to preserve them, unless specific identification be made therein of a
recorded title transaction which creates such easement, use restriction, or other interest; and provided that
possibilities of reverter, and rights of entry or powers of termination for breach of condition subsequent,
which interests are inherent in the muniments of which such chain of record title is formed and which have
existed for forty years or more, shall be preserved and kept effective only in the manner provided in section
5301.51 of the Revised Code[.]”

6 The Carpenters do not contest the trial court’s findings that they did not initiate a DMA abandonment with
respect to any individual defendants’ mineral interest in the 22.75 acre portion of Property A or with respect
to any individual defendants’ mineral interest in Property D. (1/20/2022 Appellants’ Brief, p. 28). The
Carpenters also do not challenge the Savings Events of four individual defendants (Shelba Wills, Richard
Johnson, Yvonna Nicholes, and Wanda McBurney) and the trial court’s mineral interest allocations for
Property D. (Id. at p. 29-30).


Case No. 21 MO 0007
                                                                                       – 25 –


search for the holders of the mineral interests in those properties before publishing their
four Notices of Abandonment on September 23, 2010.
        {¶50} The Carpenters take issue with the trial court’s July 10, 2020 judgment,
stressing: (1) the court did not determine that there was no genuine issue as to any
material fact as to the Carpenters’ alleged failure to exercise reasonable diligence in 2010
to locate the current holders of the mineral interests at issue; (2) the court did not
expressly determine that the individual defendants were entitled to judgment as a matter
of law on their claim that the Carpenters’ attempted abandonment of the individual
defendants’ mineral interests in the properties at issue was invalid; and (3) the court did
not make any findings that it appeared from the evidence that reasonable minds can come
to but one conclusion and viewing the evidence most favorably to the Carpenters that
conclusion is adverse to the Carpenters.
        {¶51} Moreover, the Carpenters assert the trial court’s ruling was further
erroneous because it did not consider the evidence on the “reasonable diligence” issue
in the light most favorable to the Carpenters. The Carpenters allege that Attorney Sickler
complied with Supreme Court of Ohio precedent and did review the publicly available
property and court records in Monroe County in an effort to identify the current holders of
the mineral interests in the 198.75 acre tract but was unable to locate the names and
addresses of such persons. See Gerrity v. Chervenak, 

, 2020-Ohio-
6705:

        Review of publicly available property and court records in the county where
        the land subject to a severed mineral interest is located will generally
        establish a baseline of reasonable diligence in identifying the holder or
        holders of the severed mineral interest. There may, however, be
        circumstances in which the surface owner’s independent knowledge or
        information revealed by the surface owner’s review of the property and court
        records would require the surface owner, in the exercise of reasonable
        diligence, to continue looking elsewhere to identify or locate a holder. But
        whether that additional search is required will depend on the circumstance
        of each case[.]



Case No. 21 MO 0007
                                                                                        – 26 –


Id. at ¶ 36.

       {¶52} The DMA statutory abandonment procedure essentially consists of the
following: (1) service of notice under R.C. 5301.56(E)(1); (2) recording an affidavit under
R.C. 5301.56(E)(2); and (3) memorializing the abandonment in the record under R.C.
5301.56(H)(2).
       {¶53} The Carpenters’ arguments on appeal are completely different from the
arguments they made to the trial court with respect to their DMA claim. The Carpenters’
arguments below centered on the fact that the Supreme Court of Ohio’s decision in
Corban should be overruled and that the standard for a diligent search in 2010 differed
from the standard that is applied today (an argument that this court has since rejected).
The Carpenters’ arguments have apparently been abandoned and replaced by a new
argument in this appeal, i.e., that there are genuine issues of material fact as to whether
they exercised reasonable diligence in their 2009-2010 search for the current holders of
the mineral interests. We stress, however, that the Carpenters are not entitled to raise
new arguments for the first time on appeal. The Carpenters never identified any specific
factual disputes for the trial court relating to their reasonable diligence.

       “It is well-settled that an appellant cannot present new arguments for
       the first time on appeal. Havely v. Franklin Cty. Ohio, 10th Dist. No. 07AP–
       1077, 2008–Ohio–4889, fn. 3, quoting State ex rel. Gutierrez v. Trumbull
       Cty. Bd. of Elections (1992), 

, 

; see
       also Republic Steel Corp. v. Bd. of Revision of Cuyahoga Cty. (1963), 

, 

, syllabus; Miller v. Wikel Mfg. Co ., Inc. (1989),
       

, 

. Indeed, appellate courts typically will
       not consider arguments that were never presented to the trial court whose
       judgment is sought to be reversed. See State ex rel. Quarto Mining Co. v.
       Foreman (1997), 

, 

, quoting Goldberg
       v. Indus. Comm. (1936), 

, 

.

J.P. Morgan Chase Bank v. Macejko, 7th Dist. Mahoning Nos. 07-MA-148 and 08-MA-
242, 

.




Case No. 21 MO 0007
                                                                                                    – 27 –


        {¶54} In any event, the record reveals that the Carpenters failed to exercise
reasonable diligence prior to publishing a notice of intent to abandon under division (E)(1).
The law is clear that when a surface owner fails to exercise reasonable diligence prior to
publishing a notice of intent to abandon under division (E)(1), a DMA abandonment claim
must fail. See, e.g., Miller v. Mellott, 7th Dist. Monroe No. 18 MO 0004, 

;
Fonzi v. Miller, 7th Dist. Monroe No. 19 MO 0011, 

; Fonzi v. Brown, 7th
Dist. Monroe No. 19 MO 0012, 

; Beckett v. Rosza, 7th Dist. Jefferson No.
21 JE 0003, 

; Fonzi v. Miller, Slip Opinion No. 

.
        {¶55} For the properties on which the Carpenters did attempt a DMA
abandonment, prior to service of the division (E)(1) notices, the mineral interests for all
the properties were subject to Savings Events under division (B)(3)(a). The Carpenters
do not contest this issue in this appeal. Prior to service of the division (E)(1) notices, the
Carpenters did not perform a diligent search because they failed to serve the division
(E)(1) notices by certified mail on persons they actually knew to be holders of the mineral
interests and they either missed or ignored at least 19 separate filings in the Recorder’s
Office and in the probate court which showed that the mineral interests had been
transferred.7
        {¶56} The Carpenters’ fourth assignment of error is without merit.

                           CROSS-ASSIGNMENT OF ERROR NO. 1

        THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANTS’ MOTION
        FOR LEAVE TO AMEND THEIR COUNTERCLAIM TO ASSERT AN
        ADDITIONAL CLAIM ARISING UNDER MTA.




7 It is undisputed that at the time the Carpenters initiated their DMA abandonment, they knew that many of
the defendants were family members and that they were the descendants of the original, record mineral
holders of the Mineral Reservations. The Carpenters’ extensive knowledge of and familiarity with
defendants’ names and addresses shows they could have served the division (E)(1) notices via certified
mail instead of just publishing them in the newspaper. Many of the defendants in this case stressed that,
had they received a notice by certified mail, they would have filed a claim to preserve and they did not
intend to abandon their interests. The Carpenters’ failure to continue their search for the mineral holders
based on the names, addresses, and other information that was publicly available in Monroe County was
per se unreasonable.


Case No. 21 MO 0007
                                                                                          – 28 –


       {¶57} In their first cross-assignment of error, the Offenberger Group asserts the
trial court abused its discretion in denying their motion for leave to amend their
counterclaim to assert an additional claim under the MTA. The Offenberger Group claims
that in the 28 days allowed for the filing of an answer under Civ.R. 12(A)(1), they did not
have time to conduct a full search of all the documents in the chain of title relating to the
five separate tracts of land. The Offenberger Group stresses that allowing them to assert
an additional claim under the MTA in October 2018 would not have resulted in any undue
delay or prejudice.
       {¶58} A trial court’s decision regarding whether to amend a complaint is reviewed
under an abuse of discretion standard. Netherlands Ins. Co. v. BSHM Architects, Inc.,
7th Dist. Monroe No. 18 MO 0001, 

. An abuse of discretion is more
than mere error of law or judgment; rather, it involves an unreasonable, arbitrary, or
unconscionable decision. 

.
       {¶59} The Carpenters’ memorandum in opposition to the Offenberger Group’s
motion for leave to amend aptly sets forth the following:

       On the surface, the request to file an amendment appears innocuous:
       Shelba Wills wants to amend her answer. However, Mr. Corcoran [attorney
       for Defendants] is asking for something far more burdensome, untimely, and
       unfairly prejudicial to the Plaintiffs.

       Restated: On October 8, 2018 (a full year after the Complaint was filed),
       Attorney Corcoran prepared a deed that conveyed an interest from one
       defendant’s property to the several dozen other defendants that had
       previously not answered the complaint and for whom this Court refused to
       grant leave to file untimely answers. * * * The stated purpose of this
       maneuver is to avoid the effect of this Court’s prior rulings. It says so in the
       deed itself:

       McGrath, and their heirs and assigns (“Grantees”), all of the right, title, and
       interest that each of the Grantees would have in the Property, but for the
       enactment and operation of the Marketable Title Act and Dormant Mineral



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      Act, R.C. 5301.47-5301.56, and but for the court’s refusal to grant certain
      Grantees leave to file a responsive pleading in that certain action
      (“Litigation”) styled Carpenter v. Antero Resources Appalachian Corp., et
      al., Case No. 2017-297.

      The undersigned has never encountered a deed that states “‘but for the
      court’s refusal to grant certain Grantees leave to file a responsive pleading’”
      within its text. This deed is a sham.

      Moreover, it is a sham for the purpose of tricking this Court into granting
      leave to file untimely answers, which this Court has twice refused to do. As
      benignly explained by Mr. Corcoran, “‘As a result, all of the moving parties
      have marketable record title to Property B…through Shelba Wills, as a
      result of the 2018 deed. Put differently, “‘You refused to allow us to file an
      answer. Now through a deed that we have manufactured to create a
      “marketable title” issue, we want you to allow us (dozens of us) to file new
      counterclaims to litigate a “marketable title” issue in this case, and this is
      because we’re not allowed to file an untimely answer.’”

      This case is not in its early stages. Granting this motion would cause undue
      delay. It will also cause mountains of additional work for this Court. By
      design, Mr. Corcoran is essentially asking this Court to re-start the
      pleadings by allowing this one-year-delayed “‘marketable title’” claim
      (manufactured by his October 8, 2018 sham deed) to be litigated anew.
      (Emphasis sic).

(10/25/2018 Plaintiffs’ Memorandum In Opposition To Defendants’ Motion For Leave To
Amend And Second Motion For Reconsideration, p. 2-3).

      {¶60} Antero joined the Carpenters by filing a memorandum in opposition to the
Offenberger Group’s motion for leave to amend by stating the following:

      Antero joins Plaintiffs in opposing * * * Defendants’ Motion for Leave to
      Amend * * *. This case lumbers into its second year. Had Defendant Shelba



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                                                                                         – 30 –


       Wills desired to assert a new marketable title act claim, she already had
       ample time to do so. She did not, and the Court should not permit her to
       assert that claim now, nor to transfer that claim to “‘all the other defendants
       represented by her attorneys at Theisen Brock.’”

       Defendants also try to evade the Court’s prior rulings by causing Ms. Wills
       to deed a portion of her alleged, contested mineral interest to Ralph
       Lumbatis and others whom this Court refused to grant leave to file untimely
       answers. As the adage goes, “‘(w)e should not permit parties to do through
       the back door what they cannot do through the front door.’” Harris v.
       Cincinnati, 

, 

 (1st Dist.1992). For the
       reasons stated above and in Plaintiffs’ opposition, the Court should deny
       Defendants’ motions in their entirety. (Emphasis sic).

(10/30/2018 Antero’s Memorandum In Opposition To Defendants’ Motion For Leave To
Amend And Second Motion For Reconsideration, p. 1-2).

       {¶61} Based on the facts presented and given our standard of review, the trial
court’s decision denying the Offenberger Group’s motion for leave to amend their
counterclaim to assert an additional claim arising under the MTA did not amount to an
abuse of discretion.
       {¶62} The Offenberger Group’s first cross-assignment of error is without merit.

                       CROSS-ASSIGNMENT OF ERROR NO. 2

       THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANTS’ MOTION
       CONCERNING TITLE WITH RESPECT TO PROPERTY B UNDER THE
       MTA.

       {¶63} In their second cross-assignment of error, the Offenberger Group contends
the trial court erred in denying their motion concerning title with respect to Property B
under the MTA.
       {¶64} The individual defendants contend that the following title transactions
constituted valid roots of title under the MTA for individual defendant Shelba Wills: (1) a



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                                                                                        – 31 –


May 25, 1955 Affidavit of Transfer and Record of Real Estate Inherited from Vincent
Carpenter to Nora Johnson, Denver Carpenter, and Preston Carpenter; (2) a July 17,
1956 Certificate of Transfer from Preston Carpenter to Nora Johnson and Denver
Carpenter; (3) a March 10, 1967 Certificate of Transfer from Denver Carpenter to Pauline
Carpenter and Helen Weisend; (4) a March 10, 1967 Affidavit for Transfer and Record of
Real Estate Inherited from Nora Johnson to Leland Johnson and Ellis Johnson; and (5)
an April 14, 1967 deed from Pauline Carpenter and Helen Weisend to Leland Johnson
and Ellis Johnson. The individual defendants argue that each of the foregoing title
transactions conveyed the entirety of Property B from one party to another and, therefore,
such title transactions account for the same interest to which Shelba Wills claims
marketable title. However, this is incorrect.
       {¶65} To meet the statutory definition of “root of title,” a title transaction must
satisfy two elements: (1) it must be a title transaction that is at least 40 years preceding
the date when marketability is being determined; and (2) the title transaction must “create
the interest claimed by such person.” Senterra Ltd. v. Winland, 7th Dist. Belmont No. 18
BE 0051, 

, ¶ 53, affirmed by the Supreme Court of Ohio, Senterra, Ltd.
v. Winland, Slip Opinion No. 

; R.C. 5301.47(E).
       {¶66} In dealing with this issue, the trial court held the following:

       Next, Defendants argue in their “‘Motion for Summary Judgment
       Concerning Title to Property B with Respect to the Marketable Title Act’”
       that Defendant Shelba Wills, per operation of the MTA, is entitled to 87.5%
       of the oil and gas interest underlying Property B. * * *

       ***

       According to Senterra, the first step is to determine “‘Root of Title,’” which
       is at least 40 years preceding the date when marketability is being
       determined. * * *

       In applying only the first step, Defendants [sic] Shelba Wills’ MTA argument
       fails. The “‘Root of Title’” must “‘account for the interest the person is
       claiming to have record marketable title.’” Shelba Wills is claiming to have


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                                                                                       – 32 –


       an interest in 87.5% of the oil and gas, and so she must have a “‘Root of
       Title’” that is at least 40 years old to account for this interest.

       The only deed that the Defendants identify that grants any interest to Shelba
       Wills is a deed recorded on March 19, 2007. This is not an unbroken chain
       of title for 40 years. The Defendants’ MTA claim for Property B fails, and
       this Court denies Defendants’ Motion for Summary Judgment Concerning
       Title to Property B with Respect to the MTA.

(7/10/2020 Judgment Entry, p. 12-13).

       {¶67} A review of the title transactions identified by the individual defendants do
not create an interest in the entirety of the mineral estate as the record reveals, and this
court determines, they either constitute/create fractionalized estates and/or do not meet
the definition of a root of title under R.C. 5301.47(E). Thus, the individual defendants’
motion for summary judgment under the MTA with respect to Property B failed as a matter
of law because none of the title transactions prior to 2007 constituted a legitimate root of
title deed under R.C. 5301.47(E).
       {¶68} The Offenberger Group’s second cross-assignment of error is without merit.

                   CONDITIONAL CROSS-ASSIGNMENT OF ERROR

       TO THE EXTENT THAT THE TRIAL COURT ERRED IN DENYING
       APPELLEES-CROSS-APPELLANTS’ DANNY OFFENBERGER ET AL.,
       MOTIONS FOR SUMMARY JUDGMENT CONCERNING TITLE WITH
       RESPECT TO PROPERTY B AND PROPERTY D UNDER THE OHIO
       MARKETABLE TITLE ACT, THEN THE TRIAL COURT ALSO ERRED IN
       FAILING     TO     AWARD       ADDITIONAL         DAMAGES        ON   ANTERO
       RESOURCES CORPORATION’S BREACH OF WARRANTY CLAIM
       AGAINST APPELLANTS.

       {¶69} In its conditional cross-assignment of error, Antero argues that if the
Offenberger Group prevails and is correct that the Carpenters own even less of the oil




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                                                                                     – 33 –


and gas in the Properties than that determined below, then Antero is entitled to additional
damages on its breach of warranty claim against the Carpenters.
       {¶70} Due to this court’s disposition of the Offenberger Group’s two cross-
assignments of error, we find Antero’s conditional cross-assignment of error moot. See
Warner v. Palmer, 7th Dist. Belmont No. 18 BE 0012, 

, ¶ 28, citing
Pinkney v. Southwick Investments, L.L.C., 8th Dist. Cuyahoga No. 85074, 2005-Ohio-
4167, ¶ 51; App.R. 12(A)(1)(c).

                                     CONCLUSION

       {¶71} For the foregoing reasons, the Carpenters’ assignments of error and the
Offenberger Group’s cross-assignments of error are not well-taken, and Antero’s
conditional cross-assignment of error is moot. The September 16, 2021, June 7, 2021,
May 4, 2021, April 19, 2021, August 20, 2020, and July 10, 2020 judgments of the Monroe
County Court of Common Pleas are affirmed.




Donofrio, P.J., concurs.

Robb, J., concurs.




Case No. 21 MO 0007
[Cite as Carpenter v. Antero Resources Appalachian Corp., 

.]




         For the reasons stated in the Opinion rendered herein, the assignments of error
 are overruled and it is the final judgment and order of this Court that the judgments of
 the Court of Common Pleas of Monroe County, Ohio, are affirmed. Costs to be taxed
 against the Appellants.
         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.