Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 07-31-2022
Case Style:
SENTERRA, LIMITED v. WINLAND ET AL.
Case Number: 2022-OHIO-2521
Judge:
Melody J. Stewart; Presiding Judge
Maureen O'Connor
Michael P. Donnelly
Jennifer Brunner
Court:
SUPREME COURT OF OHIO
On Appeal From The Court of Appeals for Belmont County
Plaintiff's Attorney:
Tell MoreLaw About Your Litigation Successes and MoreLaw Will Tell the World.
Re: MoreLaw National Jury Verdict and Settlement
Counselor:
MoreLaw collects and publishes civil and criminal litigation information from the state and federal courts nationwide. Publication is free and access to the information is free to the public.
MoreLaw will publish litigation reports submitted by you free of charge
Info@MoreLaw.com - 855-853-4800
Defendant's Attorney: The White Law Office Co., Thomas D. White, and Katherine M.K. Kimble
Description:
Columbus, OH - Oil and Gas Litigation lawyer represented appellee with a oil and gas interests dispute.
In 2012, Senterra acquired a 77.5-acre parcel of land in Belmont
County through a general warranty deed.
2 The conveyance was subject to oil and
gas interests that were severed from the surface property prior to Senterra’s
acquisition of the land. For the purposes of this case, the genesis of transfers of the
land occurred in 1925 when Lulu E. and James H. Winland and Alta H. and William
H. Dermot (collectively, “Winland-Dermot”) conveyed their interest in an 86-acre
1. Appellants and cross-appellees are Alan T. Winland, Laura J. Winland, Linda Godek, Clarence
Winland, Frances Faulkner, Norman Winland, Teresa Winland, John D. McBrayer, Brenda S.
Langkopf, Amy Kay Fahner, Jeff Fahner, Lori Jo Podsobinski, Charles Patterson, Cathy Patterson,
Debra Saunders, Bill Saunders, Diane McBrayer Andersen, Brian Andersen, Linda Dollison, and
Larry Podsobinski. On August 21, 2020, counsel for appellants and cross-appellees filed
suggestions of death notifying this court that Alant T. Winland died on May 19, 2020, and that
Clarence Winland died on December 22, 2018.
2. Senterra acquired through the same transfer a second parcel of land that is not at issue in this
appeal.
January Term, 2022
3
tract of land to Joseph E. Russell and George W. Russell through a quit-claim deed.
In the deed, Winland-Dermot “except[ed] and reserve[d]” a one-quarter interest in
the oil and gas underlying the land.
{¶ 4} In 1941, Joseph Russell and George Russell transferred their interest
in the 86-acre tract to George Russell through a warranty deed but excepted from
the transfer “all oil and gas rights.” The deed did not mention the one-quarter
exception and reservation made by Winland-Dermot in 1925. In 1954, George
Russell transferred the 86-acre tract to Stanley Juzwiak and Margaret Juzwiak
through a warranty deed but excepted and reserved a one-quarter interest in the oil
and gas for himself and his heirs and assigns. The 1954 deed did not mention the
prior exceptions or reservations contained in the 1925 and 1941 deeds.
{¶ 5} In 1971, Stanley Juzwiak and Margaret Juzwiak transferred their
interest in the remainder of the land, then 77.5 acres, to Seaway Coal Company
through a warranty deed that restated George Russell’s exception and reservation
of a one-quarter interest in the oil and gas. In 1987, Seaway Coal Company
transferred its interest to Shell Mining Company through a general warranty deed
that again restated George Russell’s 1954 exception and reservation of the onequarter interest. In 1992, Shell Mining Company transferred its interest to R & F
Coal Company through a limited warranty deed. The deed stated that the transfer
was “subject to * * * conditions and restrictions of record,” and attached to the deed
was the 1987 deed for the transfer of the land from Seaway Coal Company to Shell
Mining Company.
{¶ 6} In 2000, Capstone Holding Company, a successor by merger to R &
F Coal Company, transferred its interest to Lora Lynn Kelly, David Joseph Sensius,
and Steven George Sensius through a limited warranty deed. Although the deed
did not refer to any specific prior exceptions or reservations, it contained the
following language: “UNDER and SUBJECT to any and all exceptions,
reservations, restrictions, * * * [and] covenants and conditions * * * shown by
SUPREME COURT OF OHIO
4
instruments of record.” (Capitalization sic.) In 2012, Lora Kelly, David Sensius,
and Steven Sensius conveyed their interest to Senterra through a warranty deed.
The deed referred to the 1992 deed for the transfer of the land from Shell Mining
Company to R & F Coal Company, and it contained language regarding prior
exceptions and reservations identical to that used in the 2000 deed.
{¶ 7} In 2018, Senterra filed a complaint in the Belmont County Court of
Common pleas against the heirs and other defendants,
3
seeking to quiet title to the
interests in the oil and gas underlying the land. Senterra filed a motion for summary
judgment, arguing among other things that the oil and gas interests retained under
the 1925 and 1941 conveyances were extinguished by the MTA and that George
Russell’s purported reservation of a one-quarter interest in the oil and gas in the
1954 deed was legally ineffective under the Duhig rule. Alternatively, Senterra
argued that the oil and gas interests were abandoned under Ohio’s Dormant Mineral
Act, R.C. 5301.56.
{¶ 8} The trial court granted summary judgment to Senterra regarding title
to the interest that had been retained by George Russell, determining that the
reservation made in the 1954 deed was void ab initio under the ordinary rules of
contract construction and the Duhig rule. The court also determined that the
reservations of the oil and gas interests made in 1925 and 1941 were extinguished
by the MTA and that Senterra possessed marketable record title to the oil and gas
interests. The court then determined that Senterra’s claims based on the DMA were
moot.
{¶ 9} The heirs appealed to the Seventh District, arguing that the trial court
erred when it applied the MTA to extinguish their oil and gas interests, that it
incorrectly determined that the interests were extinguished by the MTA even if the
MTA applied, and that it erred when it determined that George Russell’s reservation
3. Senterra’s complaint also named as defendants Rice Drilling D, L.L.C., and Gulfport Energy
Corporation, neither of which are involved in this appeal.
January Term, 2022
5
of the one-quarter interest in the oil and gas was void ab initio pursuant to the Duhig
rule. 2019-Ohio-4387, 148 N.E.3d 34, ¶ 34, 48-49, 84-85. The court of appeals
affirmed the trial court’s determinations that the MTA applied and extinguished the
oil and gas interests that had been retained in the 1925 and 1941 deeds, id. at ¶ 43-
44, 68-74, but it reversed the trial court’s determination that George Russell’s
reservation of the one-quarter interest was void ab initio, id. at ¶ 94, 96. The court
of appeals held that the Duhig rule was inapplicable to that reservation and that the
MTA applied and preserved the one-quarter interest in the oil and gas. Id.
{¶ 10} Senterra filed an application for reconsideration with the court of
appeals, requesting that it grant a limited remand to the trial court based on the court
of appeals’ determination that the trial court had erroneously applied the Duhig rule
when it should have determined that the interest was preserved under the MTA.
2019-Ohio-5458, ¶ 4. Senterra asserted that the court of appeals’ holding revived
its claim that the interest had been abandoned under the DMA. Id. The court of
appeals granted the application and remanded the matter to the trial court for it to
determine whether the interest had been abandoned under the DMA. Id. at ¶ 6-8.
{¶ 11} The heirs appealed to this court, and Senterra filed a cross-appeal.
We accepted jurisdiction to consider the heirs’ first proposition of law: “The
Dormant Mineral Act, R.C. 5301.56, is the specific provision of the Marketable
Title Act, R.C. 5301.47 et seq., with respect to the transfer of severed, fee oil and
gas ownership interests to a surface owner and its provisions prevail over the
general provisions which are inapplicable.” See 158 Ohio St.3d 1522, 2020-Ohio3018, 145 N.E.3d 311. We also accepted jurisdiction to consider Senterra’s sole
proposition of law: “When a reservation fails under the Duhig Rule, it is declared
void ab initio at the time of the deed and cannot be revived pursuant to later
determinations that prior reservations were made or deemed ineffective pursuant to
statutory mechanisms.” See id.
SUPREME COURT OF OHIO
6
{¶ 12} We held the appeal and cross-appeal for our decision in West v.
Bode, 162 Ohio St.3d 293, 2020-Ohio-5473, 165 N.E.3d 298. See 158 Ohio St.3d
1522, 2020-Ohio-3018, 145 N.E.3d 311. After West was decided, we lifted the stay
and ordered briefing on the proposition of law presented in Senterra’s cross-appeal
only, 160 Ohio St.3d 1514, 2020-Ohio-6834, 159 N.E.3d 1178, because we
addressed the arguments relating to the heirs’ proposition of law in West, holding
that there is no irreconcilable conflict between the MTA and the DMA, see West at
¶ 2.
Law and Analysis
{¶ 13} As an initial matter, we decide the issue presented in the heirs’
proposition of law in accordance with our decision in West and affirm the judgment
of the court of appeals on that issue.
{¶ 14} Turning to the proposition of law presented in Senterra’s crossappeal, we note that when the MTA was originally enacted in 1961, it did not apply
to mineral interests. West at ¶ 17, citing former R.C. 5301.53(E), 129 Ohio Laws
1040, 1046. The General Assembly amended the MTA in 1976, however, to allow
property owners to clear their properties’ titles of unused mineral interests. Id.; see
also Am.S.B. No. 267, 135 Ohio Laws, Part I, 942-943. “The [MTA now]
extinguishe[s] 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
appear[s] in the record chain of title.” Corban v. Chesapeake Exploration, L.L.C.,
149 Ohio St.3d 512, 2016-Ohio-5796, 76 N.E.3d 1089, ¶ 18 (lead opinion); see also
Collins v. Moran, 7th Dist. Mahoning No. 02 CA 218, 2004-Ohio-1381, ¶ 20
(explaining that the MTA operates “as a 40-year statute of limitations for bringing
claims against a title of record”).
{¶ 15} “Ohio’s [MTA] is taken primarily from the Model Marketable Title
Act.” Heifner v. Bradford, 4 Ohio St.3d 49, 51, 446 N.E.2d 440 (1983). The MTA
provides that a person who has an unbroken chain of title of record to any interest
January Term, 2022
7
in land for at least 40 years has a “marketable record title” to that interest. R.C.
5301.48; see also West, 162 Ohio St.3d 293, 2020-Ohio-5473, 165 N.E.3d 298, at
¶ 15. Marketable record title is a title of record that extinguishes interests and
claims existing prior to the date of the root of title. R.C. 5301.47(A). “ ‘Root of
title’ means that conveyance or other title transaction in the chain of title of a
person, purporting to create the interest claimed by such person, upon which he
relies as a basis for the marketability of his title, and which was the most recent to
be recorded as of a date forty years prior to the time when marketability is being
determined.” R.C. 5301.47(E). Thus, the root of title must precede the date when
marketability is being determined by 40 years and it must account for the interest
claimed by the person seeking marketable record title. Id.; see also Blackstone v.
Moore, 155 Ohio St.3d 448, 2018-Ohio-4959, 122 N.E.3d 132, ¶ 9. The court of
appeals explained the process for determining the root of title under the MTA:
“Assuming the Model Act were enacted as written, an
examiner inspecting title would use it as follows: beginning with the
date forty years before the date on which he is determining title and
moving chronologically backwards therefrom, he would find the
most recently recorded conveyance of the subject parcel. This
document is his potential root of title. After giving a cursory
examination of the previoustitle documentsto determine easements,
interest owned by the federal government, and reversionary,
possessory interests in leases, he would closely scrutinize the
documents in the chain of title for the forty years immediately
following the root. Finding no competing recorded interests, he
could safely assume that all interests previous to the root of title not
otherwise excepted were extinguished and that the title was defect
free up to the date of the root. If, however, he found competing
SUPREME COURT OF OHIO
8
claims in the chain, he would go back to the next closest preceding
conveyance and repeat the process. He would continue moving
back until he found a conveyance followed by forty years of clean
title. That document would be hisroot, and he could safely conclude
that the act extinguished all competing interests recorded prior to
that date.”
2019-Ohio-4387, 148 N.E.3d 34, at ¶ 57, quoting Hubbert, Rocked by Rocket:
Applying Oklahoma’s MRTA to Severed Mineral Interests after Rocket v. Donabar,
68 Okla.L.Rev. 381, 386 (2016).
{¶ 16} Further, “[a]n interest that has been extinguished by operation of the
[MTA] cannot be revived.” West at ¶ 15, citing R.C. 5301.49(D). The only
exception to that rule is if there was a saving event that appears 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.’ ” (Brackets added in Corban.) Corban,
149 Ohio St.3d 512, 2016-Ohio-5796, 76 N.E.3d 1089, at ¶ 18, quoting R.C.
5301.49(D).
{¶ 17} Relying on the Seventh District’s application of the Duhig rule in
Talbot v. Ward, 2017-Ohio-9213, 102 N.E.3d 544 (7th Dist.), the trial court
determined that George Russell’s reservation of the one-quarter oil and gas interest
was void ab initio. In Talbot, the Seventh District analyzed successive recorded
transfers of a property’s oil and gas interests that occurred within a 40-year period.
Id. at ¶ 2-13. The court of appeals neither mentioned nor applied the MTA in
Talbot. Rather, in determining the ownership of the interests at issue, the court
applied the Duhig rule. Talbot at ¶ 45-74.
January Term, 2022
9
{¶ 18} The origin of the transfers of the disputed oil and gas interests at
issue in Talbot occurred in 1943, when a grantor conveyed his surface property to
a grantee but excepted and reserved a one-half interest in the oil and gas underlying
the property while failing to adequately mention any prior exceptions or
reservations regarding that interest in the deed. Id. at ¶ 45-51. The other one-half
interest in the oil and gas was owned by a third party who subsequently sold that
interest. Id. at ¶ 64-65. The grantee later sold his one-half interest to the third
party’s successor in title who by then owned the other one-half interest. Id. at ¶ 7,
61. And in 1977, the third-party successor recorded a preservation affidavit
claiming ownership of the entire oil and gas interest. Id. at ¶ 40, 61.
{¶ 19} The appellees in Talbot argued that the original grantor had retained
the one-half interest that he excepted and reserved to himself. Id. at ¶ 53. But the
court of appeals held that under the Duhig rule and the ordinary rules of deed
construction, even if the original grantor had excepted or reserved the one-half
interest, that exception or reservation failed because the original grantor violated
the warranty of title and his successors in interest were estopped from claiming title
to the reserved fractional interest. Talbot at ¶ 68.
{¶ 20} The Seventh District distinguished Talbot from this case because
Talbot did not involve an unbroken chain of title of record for 40 years, which is
necessary for the MTA to apply. 2019-Ohio-4387, 148 N.E.3d 34, at ¶ 91-92. The
court of appeals noted, “In Talbot we were not asked to apply the MTA. Given the
facts [in Talbot], the MTA could not have been used to extinguish an interest; the
MTA could not remove the clouds on the title to the minerals because there were
competing interests that were preserved within the 40 year period.” Id. at ¶ 91. We
agree with the court of appeals that the Duhig rule does not apply to the facts of this
case. See Trial v. Dragon, 593 S.W.3d 313, 319 (Tex.2019) (determining that the
Duhig rule applies only “if the grantor owns the exact interest to remedy the breach
SUPREME COURT OF OHIO
10
at the time of execution and equity otherwise demands it” [emphasis sic]). Rather,
this matter is resolved solely by the MTA.
{¶ 21} In 1925, Winland-Dermot excepted and reserved a one-quarter
interest in the oil and gas. Accordingly, Joseph Russell and George Russell could
each retain at most a three-eighth interest in the oil and gas under the 1941 deed
(one-half each of the remaining three-quarter interest). However, in 1954, George
Russell excepted and reserved for himself and his heirs and assigns a one-quarter
interest in the oil and gas and, because he did not account for the prior exceptions
or reservations contained in the 1925 and 1941 deeds, the plain language of the
1954 deed indicated that he conveyed the surface property and a three-quarter oil
and gas interest to Stanley Juzwiak and Margaret Juzwiak. Because of the
exception and reservation made by Winland-Dermot in the 1925 deed and the
exception made by Joseph Russell in the 1941 deed, George Russell owned only a
three-eighth interest in the oil and gas; but he purported to convey a three-quarter
interest.
{¶ 22} Senterra argues that under the Duhig rule, since George Russell
conveyed to Stanley Juzwiak and Margaret Juzwiak an interest in the property that
was greater than what he had owned, his attempt to retain the oil and gas interest
failed and should be declared void at the time of the 1954 deed. The flaw in that
argument, however, is that George Russell did not own the exact interest necessary
to remedy the breach at the time of the conveyance: he excepted and reserved a
one-quarter interest when he held only a three-eighth interest. Therefore, forfeiting
his one-quarter interest in favor of Stanley Juzwiak and Margaret Juzwiak would
not remedy the alleged breach, as it would not provide the Juzwiaks with their threequarter interest.
{¶ 23} Similarly, the dissenting opinion incorrectly frames the Duhig rule
as standing for the proposition that a grantor’s overconveyance at the time of
executing the deed renders the grantor’s exception or reservation under the deed
January Term, 2022
11
void ab initio. However, the Duhig rule embodies a narrow, equitable principle
that, as noted above, does not apply here. See Dragon, 593 S.W.3d at 318
(emphasizing that “Duhig applies the doctrine of estoppel by deed to a very distinct
fact pattern, and its holding is narrow and confined to those specific facts”).
Further, Senterra does not direct this court’s attention to any Ohio authority that
stands for the proposition that a grantor’s exception or reservation is void at the
time of the deed’s execution when the grantor also purports to convey more than
he owns.
{¶ 24} Moreover, Senterra’s position ignores the applicability of the MTA
here and its purpose, which is to “ ‘ “simplify[] and facilitat[e] land title
transactions by allowing persons to rely on a record chain of title.” ’ ” West, 162
Ohio St.3d 293, 2020-Ohio-5473, 165 N.E.3d 298, at ¶ 15, quoting Corban, 149
Ohio St.3d 512, 2016-Ohio-5796, 76 N.E.3d 1089, at ¶ 17, quoting R.C. 5301.55.
Senterra wants us to disregard the more than 40-year unbroken chain of record title
that preserved George Russell’s one-quarter oil and gas interest under the MTA and
yet scrutinize the 1954 deed as if the interests retained in the 1925 and 1941 deeds
were not extinguished by the MTA.
{¶ 25} Although the extinguishment of the exceptions or reservations
contained in the 1925 and 1941 deeds is not at issue here due to our decision in
West, the lower courts’ determinations regarding the extinguishment of those
interests are important to our analysis. The trial court determined that the WinlandDermot reservation was extinguished because the root-of-title deed was the 1954
deed, there was no reference to the interest in the chain of record title following the
1925 deed that created the interest, and there was no saving event under R.C.
5301.49 that preserved the interest. The court of appeals affirmed the trial court’s
determination that Senterra and its predecessors in title had an unbroken chain of
record title to the interest for more than 40 years. 2019-Ohio-4387, 148 N.E.3d 34,
at ¶ 68.
SUPREME COURT OF OHIO
12
{¶ 26} Similarly, the trial court determined that the exception made by
Joseph Russell and George Russell in 1941 was extinguished because the root-oftitle deed was the 1971 deed (a determination to which the parties had stipulated),
there was no reference to the interest in the chain of record title following the 1941
deed that created the interest, and there was no saving event under R.C. 5301.49
that preserved the interest. The court of appeals affirmed the trial court’s
determination that Senterra and its predecessors in title had an unbroken chain of
record title to the interest for more than 40 years. 2019-Ohio-4387 at ¶ 73. The
court explained that even though Joseph Russell and George Russell had each
retained a three-eighth interest in the oil and gas under the 1941 deed, the language
of the 1971 root-of-title deed accounted for only George Russell’s one-quarter
interest. Id. Accordingly, the court determined that the remaining one-half
interest—Joseph Russell’s three-eighth interest plus George Russell’s remaining
one-eighth interest—was extinguished. Id.
{¶ 27} The significance of the extinguishment of those interests is that there
were no recorded, competing interests to George Russell’s exception and
reservation of the one-quarter oil and gas interest created in the 1954 deed. The
1971 root-of-title deed specifically referred to George Russell’s exception and
reservation of the one-quarter interest. The exception-and-reservation language
was repeated in the 1987 deed, and the 1992 deed referred to the 1987 deed by the
county recorder’s volume and page number. Although the MTA extinguished the
exceptions or reservations made in the 1925 and 1941 deeds, it did not extinguish
the exception and reservation of the interest made by George Russell.
{¶ 28} Senterra urges us to apply the Duhig rule and to consider the state of
title to a property at the time that the conveyance of the property occurred, even
when the conveyance preceded the root-of-title deed, and to recognize interests that
were not preserved in the chain of record title or subject to any saving event under
the MTA. But an interest that has been extinguished by the MTA may not be
January Term, 2022
13
revived. West, 162 Ohio St.3d 293, 2020-Ohio-5473, 165 N.E.3d 298, at ¶ 15,
citing R.C. 5301.49(D). Had Winland-Dermot or Joseph Russell properly retained
their interests or challenged the 1954 conveyance before their interests were
extinguished, the outcome of this case might be different. But the exception and
reservation of that interest was not challenged until 2018 when Senterra filed its
quiet-title complaint, which was more than 40 years after the root-of-title event—
the 1971 deed that restated George Russell’s exception and reservation regarding
the one-quarter oil and gas interest.
{¶ 29} The dissenting opinion ignores the fact that both the trial court and
the court of appeals determined that the MTA extinguished the interest sought to
be retained by Winland-Dermot in 1925 and the interest sought to be retained by
Joseph Russell and George Russell in 1941, 2019-Ohio-4387, 148 N.E.3d 34, at
¶ 43-44, 68-74. The dissenting opinion unilaterally determines that the 1925
conveyance is a better root of title for George Russell’s one-quarter-interest
exception and reservation, finding that “[a] title search conducted using the 1925
conveyance as the root of title—and going forward 40 years—would demonstrate
that George Russell’s purported 1954 exception was void.” Dissenting opinion,
¶ 70. However, there is no basis on which to conclude that the 1925 conveyance is
the root of title because, as the court of appeals correctly acknowledged, Senterra
is the party seeking to quiet title, the 1971 deed accounts for the interest for which
Senterra seeks marketable record title, see Blackstone, 155 Ohio St.3d 448, 2018-
Ohio-4959, 122 N.E.3d 132, at ¶ 9, and the 1971 deed is the most recently recorded
deed during the 40-year period prior to the time when marketability was being
determined, which was 2018, that accounts for the interest. See R.C. 5301.47(E).
Moreover, the dissenting opinion’s cherry-picking a new root of title to support its
pseudo-MTA analysis does not resuscitate the interest sought to be retained by
Wilmot-Dermot or the interest sought to be retained by Joseph Russell and George
Russell, and it is nonsensical to acknowledge that those interests were extinguished
SUPREME COURT OF OHIO
14
by the MTA while also concluding that George Russell conveyed in the 1954 deed
more than he owned, thus voiding his interest. This court is not, as the dissenting
opinion suggests, validating George Russell’s “defunct” one-quarter-interest
exception and reservation through application of the MTA. Dissenting opinion at
¶ 64. Rather, we merely disagree with the dissenting opinion and Senterra that
George Russell’s one-quarter-interest exception and reservation was void at the
outset. As such, we hold that George Russell and his heirs and assigns have
marketable record title under the MTA to the one-quarter oil and gas interest at
issue.
Outcome: We affirm the judgment of the Seventh District Court of Appeals and
hold that the one-quarter oil and gas interest retained by George Russell and his
heirs and assigns was not subject to the Duhig rule and that the heirs’ interest was preserved under the MTA. In accordance with the judgment of the court of appeals, the cause is remanded to the trial court for it to determine whether the interest was abandoned under the DMA.
Plaintiff's Experts:
Defendant's Experts:
Comments: