16-776No.

Supreme Court. U.S.~"--~~LED

DEC I

IOFFICi~ OF THE CLERK

5in the ~u~reme ~aurt a[ the i~nitel~ ~tatez

JON D. WALKER, JR.,

V.

Petitioner,

PATRICIA J. SHONDRICK-NAU,EXECUTRIX OF THE ESTATE OF JOHNR. NOON AND SUCCESSOR TRUSTEE

OF THE JOHN R. NOON TRUST,Respondent.

On Petition for Writ of Certiorari to theOhio Supreme Court

PETITION FOR WRIT OF CERTIORARI

Kenneth J. CardinalCARDINAL LAW OFFICES758 North 15th StreetP.O. Box 207Sebring, Ohio 44672Phone: (330) 938-2161Fax: (330) 938-1556cardinallaw@sbcglobal.net

James F. MathewsCounsel of Record

BAKER, DUBLIKAR, BECK,WILEY & MATHEWS400 South Main StreetNorth Canton, Ohio 44702Phone: (330)499-6000Fax: (330) 499-6423mathews@bakerfirm.com

Counsel for Petitioner

Becker Gallagher ¯ Cincinnati, OH. Washington, D.C." 800.890.5001

BLANK PAGE

QUESTIONS PRESENTED

The questions presented involve the limits imposedby the Due Process Clause and the Contracts Clause tothe United States Constitution on the application of anamendment to a state statute, when vested propertyrights have accrued under a prior version of the act.The Ohio Supreme Court reversed lower courtdecisions wherein the courts ruled that valuable rightsto oil and gas underlying the petitioner’s real propertyhad vested in petitioner by operation of law, inaccordance with the Ohio Dormant Mineral Act (1989).The interests which petitioner obtained through hisgrantors’ deeds had vested in the property title in 1992- upon expiration of the 20-year dormancy period and3-year tolling provision after enactment of the DormantMineral Act by the Ohio legislature in 1989.Nevertheless, the Ohio Supreme Court applied anamended version of the Ohio Dormant Mineral Act(2006) to strip petitioner of his vested rights. A seriesof 12 other cases were decided by the state SupremeCourt on the same date as this case involving thesesame issues, and a far greater number of Ohio propertyowners were adversely affected by the decisions.

Two questions are presented:

1. When a property interest has vested pursuant toa lawful statutory enactment of a state legislature,does the Due Process Clause to the Federal Constitutionpreclude the retroactive application of a later-enacted,statutory amendment to divest the property right?

2. When a property interest, vested pursuant to alawful statutory enactment of a state legislature, hasbeen conveyed by contract in the form of a deed of

ii

conveyance, does the Contracts Clause to the FederalConstitution preclude the retroactive application of alater-enacted, statutory amendment which destroyssuch interest?

iii

PARTIES TO THE PROCEEDINGS

The petitioner, Jon D. Walker, Jr., is a citizen of thestate of Ohio, who owns real property located in NobleCounty, Ohio.

The respondent is Patricia J. Shondrick-Nau, in hercapacity as Executrix of the Estate of John R. Noon andSuccessor Trustee of the John R. Noon Trust. John R.Noon owned the property currently titled in thepetitioner a number of decades ago, and he had severedthe oil and gas interest in the subject property in 1965.

CORPORATE DISCLOSURE STATEMENT

The petitioner and respondent are natural persons.Neither party is a subsidiary or affiliate of a publicly-owned corporation. No publicly-owned corporation hasany direct financial interest in the outcome of thislitigation.

iv

TABLE OF CONTENTS

QUESTIONS PRESENTED ...................i

PARTIES TO THE PROCEEDINGS ...........iii

CORPORATE DISCLOSURE STATEMENT ....iii

TABLE OF CONTENTS .....................iv

TABLE OF AUTHORITIES ..................vi

PETITION FOR A WRIT OF CERTIORARI ......1

OPINIONS BELOW ......................... 1

STATEMENT OF JURISDICTION .............1

CONSTITUTIONAL AND STATUTORYPROVISIONS INVOLVED ....................2

STATEMENT OF THE CASE .................2

REASONS FOR ALLOWANCE OF THE WRIT .. 10

I. REVIEW IS WARRANTED BECAUSE THEDUE PROCESS CLAUSE TO THEFOURTEENTH AMENDMENT PROHIBITSTHE APPLICATION OF AN AMENDEDSTATE STATUTE TO DISTURB PROPERTYRIGHTS WHICH VESTED UNDER THEFORMER VERSION OF THE LAW .........12

II. REVIEW IS NECESSARY BECAUSE THECONTRACTS CLAUSE TO THE UNITEDSTATES CONSTITUTION PROHIBITS THEAPPLICATION OF AN AMENDED STATESTATUTE WHICH IMPAIRS CONTRACTRIGHTS WHICH VESTED BY OPERATION OFTHE FORMER VERSION OF THE LAW ....33

V

CONCLUSION ............................ 35

APPENDIX

Appendix A

Appendix B

Appendix C

Appendix D

Opinion in the Supreme Court of Ohio(September 15, 2016) .......... App. 1

Opinion in the Court of Appeals Stateof Ohio, Noble County, SeventhDistrict(April 3, 2014) .............. App. 14

Journal Entry in the Court of CommonPleas, Noble, Ohio(March 20, 2013) ............ App. 36

Constitutional and StatutoryProvisions Involved ..........App. 41

U.S. Const. Art. I, § 10 ........App. 41

U.S. Const. amend. XIV, § 1 . . . App. 41

OH Const. Art. II, § 28 ........App. 42

O.R.C. § 1.58 ............... App. 43

O.R.C. § 5301.56(2006 Version) ..............App. 44

O.R.C. § 5301.56(1989 Version) ..............App. 53

Sub. S.B. 223 ............... App. 57

vi

CASESTABLE OF AUTHORITIES

Albanese v. Batman,Ohio St.3d__, 2016-Ohio-5814 (Ohio) ... 16

Albanese v. Batman,2014-Ohio-5517 (11th Dist.) ................. 8

Calder v. Bull,3 U.So 386, 3 Dallas 386, 1 L.Ed 648 (1798) ... 10

Carmell v. Tex. ,529 U.S. 513 (2000) ...................... 11

Carney v. Shockley,__ Ohio St.3d__, 2016-Ohio-5824 (Ohio) ... 16

Carney v. Shockley,2014-Ohio-5830 (7th Dist.) .................. 8

Corban v. Chesapeake Exploration, L.L.C.,

__ Ohio St.3d __,2016-Ohio-5796 ..................... passim

Cross Lake Club v. Louisiana,224 U.S. 632 (1912) ...................... 35

Dahlgren v. Brown Farm Prop, LLC,__ Ohio St.3d__., 2016-Ohio-5818 (Ohio) ... 16

Dahlgren v. Brown Farm Prop, LLC,2014-Ohio-4001 (7th Dist.) .................. 8

Dassel v. Hershberger,2010-Ohio-6595 (4th Dist.) ................. 33

E. Enters. v. Apfel,524 U.S. 498 (1998) ...................... 10

vii

Eisenbarth v. Reusser,__ Ohio St.3d__, 2016-Ohio-5819 (Ohio) ... 16

Eisenbarth v. Reusser,2014-Ohio-3792 (7th Dist.) .................. 8

Farnsworth v. Burkhart,__ Ohio St.3d__,, 2016-Ohio-5816 (Ohio) .. 16

Farnsworth v. Burkhart,2014-Ohio-4184 (7th Dist.) .................. 8

Galambros v. Estep,2016-Ohio-5615 (5th Dist.) ................. 33

Griffin v. First Natl. Acceptance Co.,2013-Ohio-4302 (11th Dist.) ................ 34

Johannessen v. United States,225 U.S. 227 (1912) ...................... 10

Kelly v. Medical Life Ins. Co.,31 Ohio St.3d 130,509 N.E.2d 411 (1987) ....................33

Landgraf v. USI Film Products,511 U.S. 244, 114 S. Ct. 1483,128 L. Ed. 2d 229, (1994) ..................11

Lynce v. Mathis,519 U.S. 433,439, 117 S. Ct. 891,137 L.Ed 2d 63 (1996) .................... 11

New Orleans Water Works Co. v. Louisiana,125 U.S. 18 (1888) ....................... 35

Orwell Natl. Gas Co. v. Fredon Corp.,2015-Ohio-1212 (11th Dist.) ................ 34

Vlll

Rice, Admix. v. Rice,2002-Ohio-3459 (7th Dist.) ................. 33

Shannon v. Householder,__ Ohio St.3d__, 2016-Ohio-5817 (Ohio) ... 16

Shannon v. Householder,2014-Ohio-2359 (7th Dist.) .................. 8

Short v. Texaco, Inc.,273 Ind. 518,406 N.E. 2d 625 (1980) .....14, 15

Swartz v. Householder,__ Ohio St.3d __., 2016-Ohio-5817 (Ohio) ... 16

Swartz v. Householder,2014-Ohio-2359 (7t~ Dist.) .................. 8

Taylor v. Crosby,

__ Ohio St.3d __., 2016-Ohio-5820 (Ohio) ... 16

Texaco, Inc. v. Short,454 U.S. 516 (1982) .................. passim

Thompson v. Custer,__ Ohio St.3d __.,, 2016-Ohio-5823 (Ohio) .. 16

Thompson v. Custer,2014-Ohio-5711 (11th Dist.) ................. 8

Thompson v. Custer,Trumbull C.P. Case No. 2013 CV 2358(June 16, 2014) .......................... 32

Tribett v. Shepherd,__ Ohio St.3d __, 2016-Ohio-5821 (Ohio) ... 16

Tribett v. Shepherd,2014-Ohio-4320 (7th Dist.) .................. 8

ix

United States v. Winstar Corp.,518 U.S. 839, 116 S. Ct. 2432,135 L.Ed. 2d 964 (1996) ...................11

Wendt v. Dickerson,Ohio St.3d

2016-Ohio-5822 (Ohio) ....................16

Wendt v. Dickerson,2014-Ohio-4615 (5th Dist.) .................. 8

CONSTITUTION AND STATUTES

U.S. Const. Art. I, § 10 ..............2, 11, 33, 35

U.S. Const. amend. XIV, § 1 .............2, 11, 12

28 U.S.C. § 1257 ............................ 1

Ohio Const. Art. II, Sec. 28 ....................2

Ohio Rev. Code § 1.58 ..................2, 31, 32

Ohio Rev. Code § 5301.56 (1989) ..........passim

Ohio Rev. Code § 5301.56 (2006) ..........passim

OTHER AUTHORITY

Ohio Legislative Service Commission Report,December 1988, for Sub. S.B. 223 ....... 3, 4, 13

BLANK PAGE

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Jon D. Walker, Jr., respectfully petitionsthis Honorable Court for a writ of certiorari to reviewthe judgment of the Ohio Supreme Court in this case.

OPINIONS BELOW

The opinion of the Ohio Supreme Court is availableat __ Ohio St.3d __, 2016-Ohio-5793 (Ohio). Thestate Supreme Court’s opinion is reproduced in theappendix hereto at Pet. App. 1. The state SupremeCourt reversed the decision of the Ohio SeventhDistrict Court of Appeals. The state appellate court’sdecision is reported at 2014-Ohio-1499 (7th Dist. Ohio,Apr. 3, 2014). The appellate court’s decision isreproduced in the appendix hereto at Pet. App. 14.

STATEMENT OF JURISDICTION

The Ohio Supreme Court entered judgment againstthe petitioner in this matter on September 15, 2016.This Court has jurisdiction to review on a writ ofcertiorari the judgment in question as it is a judgmententered by the highest Court in the state of Ohio. 28U.S.C. § 1257. This petition calls into direct questionthe validity of an amended state statute which hasbeen given effect in a manner which disturbs vestedproperty rights in contravention to restraints imposedby the Federal Constitution.

2

CONSTITUTIONAL AND STATUTORYPROVISIONS INVOLVED

The constitutional and statutory provisions relevantto the instant petition include the following:

United States Constitution, Fourteenth Amendment,Sec. 1 (Pet. App. 41)

United States Constitution, Art. I, Sec. 10 (Pet. App.41)

Ohio Constitution, Art. II, Sec. 28 (Pet. App. 42)

Ohio Revised Code 1.58 (Pet. App. 431)

Ohio Revised Code 5301.56 (1989) (Pet. App. 53)

Ohio Revised Code 5301.56 (2006) (Pet. App. 44)

STATEMENT OF THE CASE

Properties throughout the state of Ohio have beenutilized for oil and gas production for many years.Most recently, the development of Utica Shale regions,primarily in Southeast Ohio, has brought about amajor resurgence of oil and gas activities in the state.The petitioner, Jon D. Walker, Jr., owns real propertylocated in Noble County, Ohio, a prime areaexperiencing Utica Shale development.

Petitioner filed his complaint in this case in theNoble County, Ohio Court of Common Pleas, seekingjudgment under the Ohio Dormant Mineral Act("DMA").1 The petitioner requested a declaratory

1 Petitioner’s claim throughout was premised upon the 1989

version of the DMA. In his complaint, he alleged, in part: "The

3

judgment and to quiet title to the oil and gas rights inhis real property. Many years prior to petitioner’sacquisition of his property, there had been a severanceof the oil and gas interests from the surface interests.That severance occurred by way of an instrumentrecorded on July 26, 1965. The petitioner filed thiscase for the purpose of demonstrating that thepreviously-severed mineral interests had merged, byoperation of law, in accordance with the DMA.Consequently, the oil and gas interests in and to thepetitioner’s property vested with the petitioner.

The Ohio General Assembly enacted the DMA in1989. Enacted as R.C. 5301.56, the DMA wasoriginally effective March 22, 1989. As explained in theComments set forth in the Ohio Legislative ServiceCommission Report, December 1988, for Sub. S.B. 223,the DMA was to operate as follows to provide for whenand how a severed oil and gas interest becameabandoned:

Sub. S.B. 223

Senso Cupp, Schafrath, Nettle, Drake, Burch.

Provides that, in the absence of certain specifiedoccurrences within the preceding 20-year period,a subsurface mineral interest that is not in coalor not of a governmental entity is deemed to be

mineral interest merged with the surface estate in the plaintiffsProperty no later than March 22, 1992. By operation of law, andas a consequence of such merger, the plaintiffs predecessor(s) intitle became the exclusive owner(s) of all applicable rights andinterests in the Property, including the surface and the oil and gasunderlying same."

4

abandoned and its title vested in the surfaceowner. (Effective: March 22, 1989).

The act modifies the Marketable Title Law toprescribe when the holder of a subsurfacemineral interest, who is not also the surfaceowner, is deemed to have abandoned theinterest. If deemed abandonment occurs, the actprovides that the interest will vest in the surfaceowner.

Deemed abandonment and vesting will occur ifnone of the act’s specified exceptions applies toa particular subsurface mineral interest.However, the act states that deemedabandonment cannot so occur until three yearsfrom its effective date.

(Pet. App. 57). The statute provided for "certainspecified occurrences" that would operate to preserve asevered mineral interest. These were described asfollows:

5301.56 Abandonment and preservation ofmineral interests

(A)

(1)

As used in this section:

"Holder" means the record holder of amineral interest, and any person whoderives his rights from, or has a commonsource with, the record holder and whoseclaim does not indicate, expressly or byclear implication, that it is adverse to theinterest of the record holder.

5

(B)(1)

(i)

(ii)

(iii)

(iv)

(v)

(vi)

Any mineral interest held by any person,other than the owner of the surface of thelands subject to the interest, shall bedeemed abandoned and vested in theowner of the surface, if none of thefollowing applies:

The mineral interest has been the subjectof a title transaction that has been filed orrecorded in the office of the countyrecorder of the county in which the landsare located;

There has been actual production orwithdrawal of minerals by the holderfrom the lands, from lands covered by alease to which the mineral interest issubject, . . .;

The mineral interest has been used inunderground gas storage operations bythe holder;

A drilling or mining permit has beenissued to the holder,...;

A claim to preserve the mineral interesthas been filed in accordance with division(C) of this section;

In the case of a separated mineralinterest, a separately listed tax parcelnumber has been created for the mineralinterest in the county auditor’s tax listand the county treasurer’s duplicate taxlist in the county in which the lands arelocated ....

R.C. 5301.56 (1989). (Pet. App. 53). The variousoccurrences have been denominated "savings events" inthe Ohio courts. As noted above, the General Assemblyexpressly provided for a three-year tolling periodfollowing enactment of the DMA, meaning "deemedabandonment [could] not so occur until three yearsfrom its effective date" or on March 22, 1992. R.C.5301.56(B)(2) (1989).

In his suit, the petitioner maintained that there hadbeen no "savings events" following the original 1965severance of oil and gas underlying his property; thus,the severed interest was both "deemed abandoned" and"vested" in petitioner’s surface ownership. Theabandonment and vesting occurred automatically, as amatter of law, under the terms of the 1989 enactmentof the DMA. Because well over twenty years hadpassed since the original severance without a savingsevent occurrence, after the three-year protective tollingprovision set forth as part of the law, the vesting in thesurface ownership occurred effective March 22, 1992.The merged and vested oil and gas rights were thenconveyed to petitioner through the deeds from hisgrantors.

The old, 1965 reservation was originally recordedand held by John R. Noon, the original defendant thusnamed in petitioner’s suit. Mr. Noon died during thependency of suit, and the respondent, Patricia J.Shondrick-Nau, in her capacity as Executrix of theEstate of John R. Noon and Successor Trustee of theJohn R. Noon Trust, was joined in his stead. Theparties submitted cross-motions for summary judgmentfor the determination of the trial court. By JournalEntry filed on March 20, 2013, the trial court granted

7

the petitioner’s motion and overruled the respondent’smotion. The state trial court held that the interests inthe oil and gas underlying the petitioner’s propertywere quieted in favor of the petitioner.2

Respondent pursued an appeal before the OhioSeventh District Court of Appeals. Finding that therecord developed and argued in this case fullysupported the determination that the previously-severed mineral interest merged with the surfaceestate, automatically, under the 1989 version of DMA,the appellate court affirmed. The appellate court’sdecision was rendered on April 3, 2014. In part, thestate appellate court held that:

When the 2006 version of R.C. 5301.56 wasenacted, Noon’s mineral interest had alreadybeen abandoned and the mineral interest hadbeen vested with the surface owner for 14 years.Once the mineral interest vested in the surfaceowner, it was reunited with the surface estate.Noon did not have any mineral interest in thesubject property after March 22, 1992, becauseon that date the interest automatically vested inthe surface owner by operation of the statute.And once the mineral interest vested in thesurface owner, it "completely and definitely"belonged to the surface owner.

2 The trial court dispensed with any consideration of the 2006amendment by stressing that: "Any discussion of R.C. 5301.56,effective June 30, 2006 is moot, because as of June 30, 2006, anyinterest of Defendant in the oil and gas had been abandoned."(Pet. App. 39).

8

(Pet. App. 29-30, 2014-Ohio-1499, ~[41).3 The appellatecourt held that the 2006 amendment could only applyprospectively. The amendment could not affect any"right, privilege, obligation, or liability previouslyacquired." Id., ~[37. Other Ohio courts had reachedsimilar conclusions as to the operation of the 1989version of the DMA. Swartz v. Householder, 2014-Ohio-2359 (7th Dist.); Tribett v. Shepherd, 2014-Ohio-4320 (7th Dist.); Wendt v. Dickerson, 2014-Ohio-4615~5th Dist.); Carney v. Shockley, 2014-Ohio-5830 (7th

Dist.); Dahlgren v. Brown Farm Prop, LLC, 2014-Ohio-4001 (7th Dist.); Eisenbarth v. Reusser, 2014-Ohio-3792(7th Dist.); Farnsworth v. Burkhart, 2014-Ohio-4184 (7th

Dist.); Shannon v. Householder, 2014-Ohio-2359 (7th

Dist.); Thompson v. Custer, 2014-Ohio-5711 (11t~ Dist.);Albanese v. Batman, 2014-Ohio-5517 (11th Dist.).

The respondent pursued a further appeal to theOhio Supreme Court. The state Supreme Courtaccepted jurisdiction in the appeal and, on September15, 2016, issued its opinion which reversed theappellate court’s judgment. The state Supreme Courtapplied an amended version of the DMA, passed by theOhio General Assembly in 2006, in reaching thedecision to reverse the lower court judgments in favorof the petitioner. Application of the later-enactedstatute - passed well after the oil and gas interests

3 Petitioner repeatedly argued below advancing theconstitutionality of the 1989 version of the DMA, based upon thesimilarities between the Ohio statute and that which passedconstitutional scrutiny in Texaco, Inc. v. Short, 454 U.S. 516(1982). This argument was addressed in petitioner’s merit briefbefore the state Supreme Court. http://supremecourt.ohio.gov/pdf_viewer/pdf_viewer.aspx?pdf=757784.pdf, pp. 30-31.

involved had already become dormant and weredeemed abandoned and vested within the surfacetitle - operates to deprive petitioner due process of law.Equally important is the effect on petitioner’s deeds,the contracts by which petitioner obtained title to hisproperty. The severed oil and gas rights, which hadlapsed, were part and parcel of those deeds ofconveyance, and application of the amended statuteenacted after the rights had vested in petitioner’sgrantors directly impairs petitioner’s contracted rights.The 2006 version of the Ohio DMA should not havebeen applied to the operation or effect of the DMA in1992, when the surface owner’s rights to the oil and gasinterests fully vested.4 Due process was satisfied bythe self-executing effect of the 1989 version of theDMA; as petitioner argued in reliance upon Texaco,Inc. v. Short.

4 In defense of the trial court’s judgment, the petitioner maintainedthroughout the state appeals that the amended, 2006 version ofthe Ohio DMA could not be applied precisely because of petitioner’svested rights to the oil and gas. Petitioner argued in his briefbefore the appellate court: "The 2006 amendment is presumed tooperate prospectively." "Regardless, the 2006 amendment cannotbe applied retroactively to impair or take away vested rights."Similarly, before the state Supreme Court, petitioner argued:"Frankly, the only point of constitutional contention ripe forconsideration in this case is that addressed herein below - theconstitutional prohibition against the amendment or reenactmentof a statute from disturbing a previously vested right or interest.""It is fundamental that the 2006 amendment cannot be appliedretroactively to impair or take away vested rights." http://supremecourt.ohio.gov/pdf_viewer/pdf viewer.aspx?pdf=757784.pdf, pp. 30,33.

10

REASONS FOR ALLOWANCE OF THE WRIT

Due process of law is a fundamental precept inAmerican jurisprudence, and there is, as a result, thepresumption against the retroactive application ofstatutory enactments or amendments to vestedproperty rights. The state Supreme Court’s decisionapplying a legislative amendment to the DMA passed14 years after the oil and gas interests at issue hadalready vested under the former version of the DMAappears patently unjust and prejudicial to thepetitioner. Moreover, the state court’s opinion has far-reaching implications for thousands of property ownersin the state of Ohio who will now find themselvesburdened by old, lapsed oil and gas reservations -reservations that should be recognized as having beenabandoned - and thereupon merged and vested withthe title to the surface by operation of law. The stateSupreme Court’s decision in this case implicatescountless millions of dollars in lost, unrecoverablevalue - in the form of lease signing bonuses andproduction royalties - to Ohio property owners.

The Court’s jurisprudence identifies a variety ofgrounds historically advanced for the protection ofvested rights from the retroactive application ofstatutory enactments. Those include: the Ex Post FactoClauses of the United States Constitution, the Bill ofAttainder Clauses, the Contracts Clause, the TakingsClause and the Due Process Clauses. The Ex PostClause is generally accepted as confined to lawsrespecting criminal punishments. Johannessen v.United States, 225 U.S. 227,242 (1912); Calder v. Bull,3 U.S. 386, 390, 3 Dallas 386, 1 L.Ed 648 (1798); butsee, E. Enters. v. Apfel, 524 U.S. 498,538-39 (1998) and

11

Carmell v. Tex., 529 U.S. 513, 567 (2000). The Bill ofAttainder Clauses and Takings Clauses both have theirrole in this context. As applied to the facts andprocedures of this case, it appears as though the DueProcess and Contracts Clause analysis are most fitting.Both questions presented herein are inextricablyconnected to the vested rights position held bypetitioner below. Although, a Justice of the OhioSupreme Court opined that application of the 2006version of the DMA operated to affect a taking ofproperty without compensation.

We must begin the analysis by accepting a series ofwell-established principles. "The presumption againstthe retroactive application of new laws is an essentialthread in the mantle of protection that the law affordsthe individual citizen. That presumption ’is deeplyrooted in our jurisprudence, and embodies a legaldoctrine centuries older than our Republic.’" Lynce v.Mathis, Super., 519 U.S. 433,439, 117 S. Ct. 891, 137L.Ed 2d 63 (1996), citing, Landgraf v. USI FilmProducts, 511 U.S. 244, 265,114 S. Ct. 1483, 128 L. Ed.2d 229 (1994). As expressed above, "It]his doctrinefinds expression in several provisions of ourConstitution." Lynce v. Mathis, supra. "The specificprohibition on ex post facto laws is only one aspect ofthe broader constitutional protection against arbitrarychanges in the law. In both the civil and the criminalcontext, the Constitution places limits on thesovereign’s ability to use its lawmaking power tomodify bargains it has made with its subjects. Thebasic principle is one that protects not only the rich andthe powerful, United States v. Winstar Corp., 518 U.S.839, 135 L.Ed. 2d 964, 116 S. Ct. 2432 (1996), but alsothe indigent defendant engaged in negotiations that

12

may lead to an acknowledgment of guilt and a suitablepunishment." Lynce v. Mathis, 519 U.S. at 440.

REVIEW IS WARRANTED BECAUSE THE DUEPROCESS CLAUSE TO THE FOURTEENTHAMENDMENT PROHIBITS THE APPLICATIONOF AN AMENDED STATE STATUTE TODISTURB PROPERTY RIGHTS WHICH VESTEDUNDER THE FORMER VERSION OF THE LAW.

The Ohio General Assembly made a bargain withOhio citizens in the form of the Dormant Mineral Actpassed in 1989. In spite of the tortured reading of thestatute by the state Supreme Court majority, that firstversion of the Ohio DMA operated automatically, tounite previously-severed oil and gas interests,abandoned after years without use or other act ofpreservation, and vested those rights in the title of thesurface owner.5 The statute relied upon by thepetitioner, and by countless other Ohio propertyowners, stated clearly and unambiguously that:

5301.56 Abandonment and preservation ofmineral interests

5 Adhering to its Corban ruling, the majority of the state SupremeCourt ignored any retroactivity analysis by fashioning a"conclusive presumption" as an "evidentiary device" in itsinterpretation of the 1989 DMA. This approach is thoughtfullycriticized in the Corban dissent. Pfeifer, J. "In doing so, Corbanhas simplified the law. All it took was rewriting it." Id. The statecourt should have recognized the self-executing feature of the 1989DMA and its validity under Texaco, Inc. v. Short. There is nomeaningful difference between an unused, lapsed mineral interestbeing deemed abandoned and vested or, alternatively,extinguished. Corban, at ~[98.

13

(A)

(1)

(B)(1)

As used in this section:

"Holder" means the record holder of amineral interest, and any person whoderives his rights from, or has a commonsource with, the record holder and whoseclaim does not indicate, expressly or byclear implication, that it is adverse to theinterest of the record holder.

Any mineral interest held by anyperson, other than the owner ofthe surface of the lands subject tothe interest, shall be deemedabandoned and vested in theowner of the surface, if none ofthe following applies: ....

R.C. 5301.56 (1989). (Emphasis added). (Pet. App. 53).The General Assembly could have written the DMA(1989) to create a right of action for a surface owner toclaim an abandoned oil and gas interest. It did not,however, draft R.C. 5301.56 in such a fashion. The1989 DMA contained no provision that couldreasonably be interpreted to require a surface owner totake some form of legal action in order to effectuate theabandonment and vesting. The words of the statute donot support such an interpretation; and the Report ofthe Ohio Legislative Service Commission does notsupport such an interpretation¯

In the absence of a "savings event" after theseverance and preceding the statutory period ofabandonment, the interests were "deemed abandonedand vested in the owner of the surface." R.C.

14

5301.56(B)(1) (Emphasis added). That is howspecifically the 1989 DMA operated. Thus, no one hadto serve or file any form of notice, did not have torecord any type of instrument, and did not have tosomehow claim the vested rights through a cause ofaction or otherwise. The 1989 version of the statuteactually used that essential word to describe themerger of the mineral interest - it "vested" in thesurface owner.

This Court passed on the constitutionality of justsuch an automatic-vesting, dormant mineral act in thecase of Texaco, Inc. v. Short, 454 U.S. 516 (1982)(" [S] evered mineral interest that is not used for aperiod of 20 years automatically lapses and reverts tothe current surface owner of the property."). Id., 518."The Mineral Lapse Act... is self-executing and doesnot contemplate an adjudication before a tribunalbefore a lapse occurs. When the statutory conditionsexist the lapse occurs." Short v. Texaco, Inc., 273 Ind.518, 522, 406 N.E. 2d 625 (1980). In Short v. Texaco,for instance, the Indiana Supreme Court recognized thefollowing:

The purposes of this Act . . . are to remedyuncertainties in titles and to facilitate theexploitation of energy sources and otl~ervaluable mineral resources. The dependence oflocal economies upon the mineral recoveryindustry and the entire State upon limited fossilfuel resources illustrates the public nature ofthese purposes. The objectives are valid andsimilar to those served by acts of limitation andthe law of adverse possession. In limiting itsincursion upon mineral rights to those which

15

have been unused in the statutory sense for aslong as twenty years, and in granting a two yearperiod of grace after the enactment of thestatute to preserve interests, the Legislatureadopted means which are rationally related tosuch objectives, and which themselves provide areasonable time and a simple and inexpensivemethod, taking into consideration the nature ofthe case, for preserving such interests. We findthat this Act is within the police power of thestate and does not unconstitutional impair theobligation of contracts.

Short v. Texaco, 273 Ind. at 526.

When this Court affirmed the Indiana judgment,the Court endorsed automatic abandonment byoperation of a mineral lapse statute:

Each of the actions required by the State toavoid an abandonment of the mineral estatefurthers a legitimate state goal. Certainly theState may encourage owners of mineral intereststo develop the potential of those interests;similarly, the fiscal interest in collectingproperty taxes is manifest. The requirementthat a mineral owner file a public statement ofclaim furthers both of these goals by facilitatingthe identification and location of mineralowners, from whom developers may acquireoperating rights and from whom the county maycollect taxes. The State surely has the power tocondition the ownership of property oncompliance with conditions that impose such a

16

slight burden on the owner while providing suchclear benefits to the State.

Texaco v. Short, 454 U.S. at 529-30.

Operation of the Ohio 1989 Dormant Mineral Act isperhaps best described by Justice Paul Pfeifer in hisdissent in the state Supreme Court’s opinion in Corbanv. Chesapeake Exploration, L.L.C., __ Ohio St.3d __2016-Ohio-5796, announced the same day as thedecision in this case.6 Justice Pfeifer was, by chance, amember of the Ohio General Assembly when the 1989version of the DMA was enacted:

The federal court certified two questions to thiscourt. I dissent from the majority’s response tothe first question. I would hold that the 1989version of R.C. 5301.56 applies to quiet-titleactions filed after 2006 in which the surfaceowner alleges that mineral rights automaticallyvested in the surface owner as a result ofabandonment prior to the effective date of the

6 The other cases decided by the Ohio Supreme Court on the

authority of Corban, in addition to petitioner’s case, were: Swartzv. Householder,_ Ohio St.3d __, 2016-Ohio-5817 (Ohio); Tribettv. Shepherd, __ Ohio St.3d __, 2016-Ohio-5821 (Ohio); Wendt v.Dickerson, __ Ohio St.3d __., 2016-Ohio-5822 (Ohio); Carney v.Shockley, __ Ohio St.3d __., 2016-Ohio-5824 (Ohio); Dahlgren v.Brown Farm Prop, LLC, __ Ohio St.3d __, 2016-Ohio-5818(Ohio); Eisenbarth v. Reusser, __ Ohio St.3d __, 2016-0hio-5819(Ohio); Farnsworth v. Burkhart, __ Ohio St.3d __., 2016-0hio-5816 (Ohio); Shannon v. Householder,_ Ohio St.3d __, 2016-0hio-5817 (Ohio); Thompson v. Custer, __ Ohio St.3d __, 2016-0hio-5823 (Ohio); Albanese v. Batman, __ Ohio St.3d __, 2016-0hio-5814 (Ohio); Taylor v. Crosby,_ Ohio St.3d __, 2016-0hio-5820 (Ohio).

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2006 amendments to R.C. 5301.56. I concur inthe majority’s response to the second questionthat a payment of delay rental is neither a titletransaction nor a saving event under the OhioDormant Mineral Act ("ODMA’).

1989 ODMAIn 2006, hindsight may have provided theGeneral Assembly the vision it wished it hadhad when it passed the first version of theODMA in 1988. But regardless of the changesthe General Assembly implemented in 2006,former R.C. 5301.56 ("1989 ODMA") functionedas the law in this state for 17 years, and throughits operation created vested rights in certainproperty owners. Those vested rights cannot betaken away without running afoul of the OhioConstitution and the Ohio Revised Code.

As the lead opinion relates, the GeneralAssembly enacted the 1989 ODMA "to provide amethod for the termination of dormant mineralinterests and the vesting of their title in surfaceowners, in the absence of certain occurrenceswithin the preceding 20 years." Sub.S.B. No.223, 142 Ohio Laws, Part I, 981 ("S.B. 223"). Itimplemented that clear and unambiguouspurpose through a statute that was bluntlyefficient. The 1989 ODMA stated that "[a]nymineral interest held by any person, other thanthe owner of the surface of the lands subject tothe interest, shall be deemed abandoned andvested in the owner of the surface, if none of thefollowing applies." Former R.C. 5301.56(B)(1),S.B. 223, 142 Ohio Laws, Part I, 986. The

18

statute set forth the few conditions that couldprevent the reunification of mineral and surfacerights in the land: if the mineral interest wascoal or was owned by a government entity(former R.C. 5301.56(B)(1)(a) and (b)) or if one ofthe saving events under former R.C.5301.56(B)(1)(c) had occurred within the past 20years. Id. Those saving events required someindication of use by the mineral-rights holderand ranged from filing a claim to preserve theinterest to actual drilling or mining. Id. at 986-987.

The impact of the law was not immediate--theGeneral Assembly included in the 1989 ODMAa three-year grace period during which amineral-rights holder could preserve his interestby performing one of the saving events listed informer R.C. 5301.56(B)(1)(c). Former R.C.5301.56(B)(2), S.B. 223, 142 Ohio Laws, Part I,987. A process was thus in place for a mineral-rights holder to prevent the statutoryreunification of the mineral rights with thesurface rights. Mineral-rights holders who haddone nothing with their rights in the previous 20years still had an additional three years topreserve their interests.

The plain language of the 1989 ODMA statesthat absent a saving event, a separate mineralinterest shall be deemed abandoned and themineral interest shall vest in the owner of thesurface property. The statute uses the word"shall--the mineral interest "shall be deemed

19

abandoned and vested in the owner of thesurface"---and this court has "repeatedlyrecognized that use of the term ’shall’ in astatute or rule connotes a mandatory obligationunless other language evidences a clear andunequivocal intent to the contrary." State ex rel.Cincinnati Enquirer v. Lyons, 140 Ohio St.3d 7,2014-Ohio-2354, 14 N.E.3d 989, ~ 28.

The former statute plainly set forth the fewconditions that the mineral-rights holder neededto meet to prevent the reunification of mineraland surface rights in the land. Former R.C.5301.56 is absolutely silent as to any actionrequired by the surface owner to effectuate thevesting of the mineral rights. There is noprovision requiring the surface owner toaffirmatively assert any claim, record any claim,or file any form of suit or other declaration of thevested interests. There is no statutory languagethat suggests that the vesting of the mineralrights was anything other than automatic. Thestatute mandated that it "shall" occur.

The General Assembly could have required somefurther affirmative action by the surface ownerprior to vesting, but it did not. The UniformDormant Mineral Interests Act ("UDMIA"),which the National Conference ofCommissioners on Uniform State Laws approvedand recommended in August 1986 and whichwas thus available as a model at the time Ohio’sODMA was enacted, requires the surface ownerto "maintain an action to terminate a dormantmineral interest" that is "in the nature of and

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requires the same notice as is required in anaction to quiet title." UDMIA, Section 4(a),available at http://www.uniformlaws.org/shared/docs/dormant%20mineral%20interests/udmia_final_86.pdf (accessed Dec. 16, 2015). Ohio didnot incorporate that provision into the 1989ODMA.

The fact that it did not had no constitutionalconsequence. The General Assembly stood onsolid constitutional ground in not requiringnotice or filing of suit by the surface owner priorto the mineral interest being deemed abandonedand vested in the surface owner. Before Ohioadopted the 1989 ODMA, the United StatesSupreme Court upheld the constitutionality ofIndiana’s Dormant Mineral Interests Act, "astatute providing that a severed mineral interestthat is not used for a period of 20 yearsautomatically lapses and reverts to the currentsurface owner of the property, unless themineral owner files a statement of claim in thelocal county recorder’s office." Texaco, Inc. v.Short, 454 U.S. 516, 518, 102 S.Ct. 781, 70L.Ed.2d 738 (1982). The Indiana statute"contained a 2-year grace period in whichowners of mineral interests that were thenunused and subject to lapse could preserve thoseinterests by filing a claim in tl~e recorder’soffice." Id. at 518-519. Like Ohio’s 1989 ODMA,the Indiana statute did not require the surfaceowner to provide any notice to the mineral-rights holder before the lapse and reversionoccurred; the court referred to the statute as"self-executing":

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Appellants simply claim that the absence ofspecific notice prior to the lapse of a mineralright renders ineffective the self-executingfeature of the Indiana statute. That claim hasno greater force than a claim that a self-executing statute of limitations isunconstitutional. Id. at 536.

The court held that the inaction of the mineral-rights holder rather than any act of the surfaceowner had caused the property right to lapse:

[T]he State of Indiana has enacted a rule of lawuniformly affecting all citizens that establishesthe circumstances in which a property interestwill lapse through the inaction of its owner.None of the cases cited by appellants suggeststhat an individual must be given advance noticebefore such a rule of law may operate. Id. at537.

Like Indiana, Ohio enacted a self-executingstatute that vested in a surface owner anyseparated mineral rights that had been dormantfor a period of 20 years. Like Indiana’s, Ohio’sstatute was constitutional, and respondents donot argue that it was unconstitutional. They areleft instead to argue that the General Assemblydid not mean what the statute clearly said.

The Lead Opinion’s Interpretation of the 1989ODMA

The lead opinion subjects the 1989 ODMA tojudicial modification under the guise ofinterpretation. What does the lead opinion

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interpret the General Assembly to have meant?Where the General Assembly wrote thatdormant mineral interests "shall be deemedabandoned and vested in the owner of thesurface," the lead opinion interprets somethinglike, "To reunite mineral rights with the surfacerights, the surface owner must successfullyprosecute a quiet-title action against the ownerof the mineral interest based upon the mineral-rights holder’s alleged abandonment of themineral rights, and in that quiet-title action, thesurface owner shall enjoy a conclusivepresumption that the mineral rights have beenabandoned." That is, under the lead opinion’sinterpretation, if the mineral rights are deemedabandoned under the 1989 ODMA, the surfaceowner enjoys only a "conclusive presumption" (aterm not used in the statute) in a potentialquiet-title action (an action that is not requiredby or even referred to in the statute). The leadopinion accomplishes this interpretation almostentirely through inserting words not used by theGeneral Assembly. And the lead opinionvirtually ignores the word "vested."

The Meaning of "Deemed Abandoned"

The lead opinion’s interpretation finds itsgenesis in the words "deemed abandoned." Thelead opinion states that deeming somethingabandoned creates a conclusive presumption ofabandonment that can be used in a future actionfor proof of abandonment. But instead, the leadopinion should have employed the commonusage of the word "deem." There is no hidden

23

meaning involving future proceedings embeddedin the word "deemed." "’"Deemed" has beendefined as "considered," "determined," or"adjudged" * * * ’" Jacot v. Secrest, 153 Ohio St.553, 559, 93 N.E.2d 1 (1950), quoting State exrel. Hoagland v. Prairie Cty. School Dist. No. 13,116 Mont. 294, 298, 151 P.2d 168 (1944). At thetime the 1989 ODMA was passed, Black’s LawDictionary defined "deem" as "It] o hold; consider;adjudge; believe; condemn; determine; treat asif; construe." Black’s Law Dictionary 374 (5thEd. 1979). In State ex rel. Brecksville Edn. Assn.v. State Emp. Relations Bd., 74 Ohio St.3d 665,666, 1996 Ohio 310,660 N.E.2d 1199 (1996), fn.1, this court noted that bargaining units thathad been "deemed certified" by an uncodifiedsection of an act "are treated as if they had beencertified normally." In Texaco, the UnitedStates Supreme Court indicated that privateproperty that is "deemed to be abandoned" is"treat[ed] * * * as abandoned." Texaco, 454 U.S.at 530, 102 S.Ct. 781, 70 L.Ed.2d 738.

This court has previously addressed statutescontaining the word "deemed" and interpretedthem to mean that the deemed result occurredautomatically by operation of law. In State exrel. Battin v. Bush, 40 Ohio St.3d 236, 239,533N.E.2d 301 (1988), the statute at issue, R.C.305.03(A), provided, "Whenever any countyofficer fails to perform the duties of his office forninety consecutive days, * * * his office shall bedeemed vacant." Id. at 239. This court held that"It]he inquiry established by this statute is notwhether one has the right to a particular office

24

but whether, upon certain facts, he hasabandoned the office. * * * [T]he statute deemsthe office to be vacant automatically, upon theoccurrence of the statutorily determined events."Id. This court stated that the statute was "by itsterms, self-executing. Upon the happening ofthe enumerated events, the office is thenvacant." Id. at 241. [Other examples applying"deemed" omitted] ....

Thus, under the plain meaning of the word"deemed" and under the interpretation of theword by this court, the "deemed abandoned"language in the 1989 ODMA means that themineral rights were, by operation of law, to beconsidered or treated as abandoned.

But the lead opinion claims that the "deemedabandoned" language created a presumption ofabandonment that "was only an evidentiarydevice that applied to litigation seeking to quiettitle to a dormant mineral interest." Leadopinion at ~[ 26. The Michigan Supreme Court,in addressing the "deemed abandoned" languagein Michigan’s dormant-mineral-interest actrejected the idea that it created any evidentiarypresumption:

Contrary to defendants’ arguments, the act doesnot create any evidentiary presumption. Noneof the provisions of the act purport to beconcerned with the owner’s intent to abandon* * * Rather, the act is designed to increase themarketability and development of severedmineral interests by creating a rule ofsubstantive law which requires owners to

25

undertake minimal acts indicative of ownershipat least every 20 years. The statutory approachto these issues has the added advantage ofeliminating uncertainty and minimizinglitigation, see In re Mercure Estate, 391 Mich.443,448, 216 N.W.2d 914 (1974).

(Footnote deleted in original). Van Slooten v.Larsen, 410 Mich. 21, 50-51, 299 N.W.2d 704(1980).

Like the Michigan statute, the 1989 ODMA didnot create a presumption to be employed in afuture action--instead, it created a rule ofsubstantive law. The law vested a propertyright by operation of law upon the nonoccurrenceof a saving event within a certain period. The1989 ODMA did not merely create a simplifiedway to prove abandonment in a quiet-titleaction; instead, on its own, it vested in thesurface owner the interest in the minerals underthe surface.

Still, a surface owner may choose to bring anaction to quiet title pursuant to R.C. 5303.01 inorder to enforce the rights vested through theoperation of the 1989 ODMA. But the leadopinion conflates the substantive property rightvested by the operation of the 1989 ODMA witha quiet-title action brought pursuant to R.C.5303.01 to achieve judicial recognition of thatproperty right. The 1989 ODMA vested theright, and a separate quiet-title action wouldallow the surface owner to confirm that thestatutory elements had been met and that thereversion of the mineral rights had occurred.

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Vesting is not delayed until the surface ownerbrings a quiet-title action; the quiet-title actionsimply shows the world that the interest hadvested.

Van Slooten recognized that vesting under adormant-mineral-interest act with "deemedabandoned" language occurs without a hearing.The court held that "due process does notrequire a hearing prior to vesting title in theowner of the surface estate" and that a personwho had been deemed to have abandoned hismineral interest would have an opportunityafter vesting "for a hearing to determinewhether the statutory requirements have beenmet and to ascertain the ownership of theproperty." Van Slooten, 410 Mich. at 55, 299N.W.2d 704. The vesting does not tbllow a quietmtitle action; the quiet-title action follows thevesting.

VestingThe lead opinion spends a great deal of timediscussing the words "deemed abandoned" andprecious little time addressing the word"vested." The 1989 ODMA stated that themineral rights "shall be deemed abandoned andvested in the owner of the surface." That word,"vested," is a problem for the lead opinion. TheGeneral Assembly’s use of the word "vested" inthe 1989 ODMA belies the lead opinion’sassertion that the reunificatioi~ of the mineralrights with the surface rights is somehowincomplete, short of litigation, upon the passageof 20 years of inactivity by the mineral-rights

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holder. Far from being incomplete, a vestedright is "complete, consummated and subject toinvoluntary divestiture only upon due process oflaw." Viers v. Dunlap, 1 Ohio St.3d 173, 176, 1Ohio B. 203,438 N.E.2d 881 (1982), overruled inpart on other grounds, Wilfong v. Batdorf, 6Ohio St.3d 100, 6 Ohio B. 162,451 N.E.2d 1185(1983), paragraph three of the syllabus. Thiscourt has recognized that "as defined, a right is’vested’ when it ’so completely and definitelybelongs to a person that it cannot be impaired ortaken away without the person’s consent.’"Harden v. Ohio Atty. Gen., 101 Ohio St.3d 137,2004-Ohio-382, 802 N.E.2d 1112, ~[ 9, quotingBlack’s Law Dictionary 1324 (7th Ed.1999).That the mineral interest is "vested in the ownerof the surface" means that there is no furtherprocedure necessary to complete thereunification of the mineral rights with thesurface rights.

That vesting is crucial. "A ’vested right’ can ’becreated by common law or statute and isgenerally understood to be the power to lawfullydo certain actions or possess certain things; inessence, it is a property right."’ State ex rel.Jordan v. Indus. Comm., 120 Ohio St.3d 412,2008-Ohio-6137, 900 N.E.2d 150, ~[ 9, quotingWashington Cty. Taxpayers Assn. v. Peppel, 78Ohio App.3d 146, 155, 604 N.E.2d 181 (4thDist.1992).

It is because those property rights vested in thequalifying surface owners pursuant to the 1989ODMA that the 2006 amendment to the statute

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cannot apply to those surface owners. First, the2006 changes, which are still in effect today,create a process--where none had existedbefore--requiring surface owners to performcertain tasks prior to mineral interests beingreunited with the surface interest and vested inthe surface owner:

Any mineral interest held by any person, otherthan the owner of the surface of the landssubject to the interest, shall be deemedabandoned and vested in the owner of thesurface of the lands subject to the interest if therequirements established in division (E) of thissection are satisfied and none of the followingapplies. R.C. 5301.56(B).

The requirements of R.C. 5301.56(E)--providingnotice to the mineral-rights holder and filing anaffidavit of abandonment with the countyrecorder--must be met before the mineral rightscan be deemed abandoned and vested in thesurface owner. The 2006 amendmentapplies--by its own terms--only to situations inwhich vesting in the surface owner has not yetoccurred and places conditions on surfaceowners before the mineral rights can vest inthem. Nothing in the 2006 amendment suggeststhat it applies in situations in which mineralrights had already vested before the effectivedate of the amendment. It simply sets forth howmineral interests that had not vested in thesurface owner before the effective date of theamendment can become vested in the surfaceowner.

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Any other interpretation is contrary to theprotections from retroactive legislation providedby R.C. 1.58 and Article II, Section 28 of theOhio Constitution. R.C. 1.58(A)(2) states thatthe amendment of a statute does not "[a]ffectany validation, cure, right, privilege, obligation,or liability previously acquired, accrued,accorded, or incurred thereunder." Propertyrights automatically vested in the surface ownerunder the 1989 ODMA when the statutoryconditions were met; thus, any amendment tothe statute that operates to affect thoserights--by requiring, for instance, that mineralrights cannot be vested in the surface ownerwithout the performance of certain noticeprocedures--contravenes R.C. 1.58.

Further, Article II, Section 28 of the OhioConstitution prohibits the General Assemblyfrom passing retroactive laws. There is noindication that the General Assembly intendedthe 2006 amendment to be retroactive, butstatutory amendments that appear prospectivein operation nonetheless violate the prohibitionagainst retroactive laws if the statute’sprospective operation would retroactivelydestroy rights that had already vested: We havealso stated that the "retroactivity clause nullifiesthose new laws that ’reach back and create newburdens, new duties, new obligations, or newliabilities not existing at the time [the statutebecomes effective].’ Miller v. Hixson (1901), 64Ohio St. 39, 51, 59 N.E. 749, 752." Bielat [v.Bielat], 87 Ohio St.3d [350,] 352-353, 2000 Ohio451, 721 N.E.2d 28 [2000]. In Van Fossen [v.

30

Babcock & Wilcox Co., 36 Ohio St.3d 100, 522N.E.2d 489 (1988)], this court stated that theconstitutional limitation against retroactive laws"’include[s] a prohibition against laws whichcommenced on the date of enactment and whichoperated in futuro, but which, in doing so,divested rights, particularly property rights,which had been vested anterior to the time ofenactment of the laws.’" lid. at 10], quotingSmead, The Rule Against RetroactiveLegislation: A Basic Principle of Jurisprudence(1936), 20 Minn.L.Rev. 775, 781-782. TobaccoUse Prevention & Control Found. Bd. of Trusteesv. Boyce, 127 Ohio St.3d 511, 2010-Ohio-6207,941 N.E.2d 745, ~[ 14.

To apply the requirements of the 2006amendment to surface owners who had obtainedvested mineral rights pursuant to the 1989ODMA implements a textbook example of anunconstitutionally retroactive law. Under themajority’s holding, the new law reaches backand divests the surface owners of property rightsthat vested prior to the operation of the 2006amendment to the statute. As applied by themajority, the 2006 amendment impairssubstantive vested rights and thus isunconstitutional.

Applying the 2006 amendment to surface ownerswhose rights to mineral interests had vestedpursuant to the 1989 ODMA constitutes nothingless than a taking. The 1989 ODMA providedthat a mineral-rights holder’s interest wasconsidered abandoned by operation of law,

31

having lapsed due to the mineral-right holder’s20 years of inaction, and was subject to a three-year grace period during which a mineral-rightsowner could preserve the interest through asimple filing. In contrast, under the majority’sinterpretation of the 2006 amendment, a surfaceowner whose mineral-rights interest vested byoperation of the 1989 ODMA lost those mineralrights immediately on the effective date of the2006 amendment--without any required periodof inactivity by the surface owner and with noopportunity to preserve the property rightthrough satisfying a statutory condition--for noreason other than that the General Assemblywished the rights to revert to someone else. TheGeneral Assembly gave no indication that the2006 amendment should be interpreted thatway, and R.C. 1.58 and the Ohio Constitutionshould prevent it from being interpreted thatway.

Id., at ~[~[ 107-140.

The petitioner repeatedly advocated the positionbelow that application of the 2006 amendment to theOhio DMA to the facts of his title would violate theprohibitions against retroactive law applied to disturbvested property rights and violate the specific provisionof R.C. 1.58. R,C. 1.58 provides that:

(A) The reenactment, amendment, or repealof a statute does not, except as providedin division (B) of this section:

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(2) Affect any validation, cure, right,privilege, obligation, or liabilitypreviously acquired, accrued, accorded, orincurred thereunder; ....

[Division (B), regarding reduction of penalties andpunishments, is not applicable here]. Because thepetitioner’s predecessor in title acquired the mineralinterest at issue in this case, by the merger of samewith the surface estate under the 1989 version of thestatute, the amendment of that statute in 2006 doesnot affect such rights. "IT]he enactment of the 2006law is of no effect because the mineral rights on thesubject properties were already abandoned. This caseis really that simple." Thompson v. Custer, TrumbullC.P. Case No. 2013 CV 2358, p. 4 (June 16, 2014).

This case represents precisely what was bestcharacterized in the dissent in Corban: "To apply therequirements of the 2006 amendment to surface ownerswho had obtained vested mineral rights pursuant tothe 1989 ODMA implements a textbook example of anunconstitutionally retroactive law." Corban, at ~[ 138.

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II. REVIEW IS NECESSARY BECAUSE THECONTRACTS CLA USE TO THE UNITED STATESCONSTITUTION PROHIBITS THEAPPLICATION OF AN AMENDED STATESTATUTE WHICH IMPAIRS CONTRACT RIGHTSWHICH VESTED BY OPERATION OF THEFORMER VERSION OF THE LAW.

Under Ohio law, all written instruments, includingdeeds of conveyance, are treated as contractual and,thus, construed and enforced under contract rules."The construction of written contracts and instruments,including deeds, is a matter of law." Dassel v.Hershberger, 2010-Ohio-6595, ~[18 (4th Dist.). As withany contract, the courts endeavor to find the parties’intent within the written words of the instrument."The intent of the parties to a deed controls itsinterpretation." Id. "The principles of deedconstruction dictate that a court presumes that a deedexpresses the intentions of the grantor and grantee atthe time of execution." Galambros v. Estep, 2016-Ohio-5615, ~[15 (5th Dist.). "The intent of the parties to acontract is presumed to reside in the language theychose to employ in the agreement." Kelly v. MedicalLifeIns. Co., 31 Ohio St.3d 130, 509 N.E.2d 411 (1987),syllabus. Summarized succinctly, "A deed is a contract,and is therefore subject to the parol evidence rule."Rice, Admix. v. Rice, 2002-Ohio-3459, ~[44 (7th Dist.).

The petitioner acquired his property at issue in thiscase by way of two, properly-recorded deeds ofconveyance. One of the deeds was a statutory formDeed of Fiduciary, and the other a General WarrantyDeed. Both deeds were recorded in 2009.

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A General Warranty Deed "has the force and effectof a deed in fee simple to the grantee, the grantee’sheirs, assigns, and successors.., with covenants on thepart of the grantor with the grantee . . . that thegranted premises were free from all encumbrances.... " Griffin v. First Natl. Acceptance Co., 2013-Ohio-4302, ~21 (11th Dist.). "In the context of property law,a ’covenant’ denotes a contract .... " Orwell Natl. GasCo. v. Fredon Corp., 2015-Ohio-1212, ~[23 (11th Dist.).The petitioner’s interests under his deeds arecontractual and, importantly, the previously-severed oiland gas interests involved had already been abandonedand vested with the ownership of the surface prior tothe delivery of the deeds to the petitioner. There wereno reservations or exceptions set forth in petitioner’sdeeds limiting the breadth of interest conveyed to him.In other words, the deeds delivered to the petitionerconveyed all interests then held by the grantors, whichincluded the merged and vested rights to the oil andgas underlying the subject property.

As thoroughly discussed herein above, the oil andgas rights in and to the petitioner’s property vested byoperation of law under the 1989 version of the DormantMineral Act. Those interests had already merged withthe holder of the surface title (petitioner’s grantors) in1992, after the 3-year grace period or tolling period ofthe DMA had expired. The state Supreme Court’sdecision, applying the later, 2006 amendment of theDMA, strips the oil and gas rights from the deeds ofconveyance to the petitioner. Application of theamended statute fundamentally changes thecontractual bargain between the petitioner and hisgrantors represented by the deeds. This dramaticalteration of petitioner’s interests is prohibited by the

35

Contracts Clause, Art. I, Section 10 of the United StatesConstitution. "No state shall . . . pass any . . . Lawimpairing the Obligations of Contracts." Id.

"When the state court, either expressly or bynecessary implication, gives effect to a subsequent lawof the state, whereby the obligation of the contract isalleged to be impaired, a federal question is presented."Cross Lake Club v. Louisiana, 224 U.S. 632 (1912); NewOrleans Water Works Co. v. Louisiana, 125 U.S. 18(1888).

CONCLUSION

For the foregoing reasons, the petition for a writ ofcertiorari should be granted.

Respectfully submitted,

James F. MathewsCounsel of Record

BAKER, DUBLIKAR, BECK,WILEY & MATHEWS400 South Main StreetNorth Canton, Ohio 44702Phone: (330)499-6000Fax: (330) 499-6423mathews@bakerfirm.com

Kenneth J. CardinalCARDINAL LAW OFFICES758 North 15th StreetP.O. Box 207Sebring, Ohio 44672Phone: (330) 938-2161Fax: (330) 938-1556cardinallaw@sbcglobal.net

Counsel for Petitioner

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