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Anthony Simon v. Dorothy Fondessy, Case no. 2013-1574
Sixth District Court of Appeals (Ottawa County)

Phillip Dodd et al. v. John Croskey et al., Case no. 2013-1730
Seventh District Court of Appeals (Harrison County)

Estate of Marcella Atkinson v. Ohio Department of Job and Family Services, Case no. 2013-1773
Fifth District Court of Appeals (Knox County)

Chesapeake Exploration, L.L.C., et al. v. Kenneth Buell et al., Case no. 2014-0067
U.S. District Court for the Southern District of Ohio, Eastern Division


What Standard of Mental Distress Is Needed to Issue Civil Stalking Protection Order?

Anthony Simon v. Dorothy Fondessy, Case no. 2013-1574
Sixth District Court of Appeals (Ottawa County)

ISSUE: Does R.C. 2903.211(A)(1) require a victim to actually experience mental distress or only believe that the stalker will cause the victim physical harm or mental distress, for a court to issue a civil stalking protection order?

Editor’s Note: The Supreme Court determined that a conflict exists between the decision issued in this case from the Sixth District Court of Appeals and a 2009 decision by Seventh District Court of Appeals.

BACKGROUND:
A series of confrontations between Ottawa County cousins and neighbors Anthony Simon and Dorothy Fondessy (and her husband) that began over a property line dispute eventually led to the trial court granting a civil stalking protection order (CSPO) in 2011 against Simon. Simon appealed the CSPO to the Sixth District Court of Appeals, which upheld the issuance of the CSPO in 2013. The Sixth District certified that its decision conflicted with a ruling out of the Seventh District Court of Appeals. The Ohio Supreme Court agreed to consider the case to resolve the conflict.

A petitioner must show by a preponderance of evidence that the respondent engaged in a violation of R.C. 2903.211 to be granted a CSPO. Section (A)(1) of the statute provides: “No person by engaging in a pattern of conduct shall knowingly cause another person to believe that the offender will cause physical harm to the other person or cause mental distress to the other person.”

According to Simon’s attorney, the appeals court found that belief that another’s actions might cause mental distress is enough for a CSPO. Simon’s attorney claims that the Sixth District misinterpreted the law by placing the proof burden on Simon instead of the injured party.

“The court makes Simon accountable because of the age and health of the other party; effectively making mental distress a subjective matter that a person – here Simon – must be concerned about and evaluate before he takes an action or speaks a word.”

The attorney favors the “stricter interpretation” of the Seventh District court versus the “liberal application” of the Sixth District.

He argues that the legislature’s intent with the wording of statute is clear.

“The construction of the statute by the legislature clearly requires only a belief that the offender might cause physical harm, but must actually cause mental distress,” the attorney asserts. “Had the legislature intended only a belief of causing mental distress they would have constructed the statute to read[:] ‘No person by engaging in a pattern of conduct shall knowingly cause another person to believe that the offender will cause physical harm or mental distress to the other person.’”

Fondessy’s attorney, however, cites seven appeals courts as finding that the showing of actual mental distress is not required under Ohio’s Menacing by Stalking statute.

Specifically, Fondessy’s attorney points to a First District Court of Appeals decision in Griga v. DiBenedetto (2012) to support an interpretation that only a belief of possible mental distress is required.

“In fact, that Court found that an interpretation requiring actual mental distress would undermine the legislative intent of the statute” of preempting an incident, he writes. “Requiring a victim to show actual mental distress or physical harm would mandate that a situation escalate before a Court could intervene.”

Petitioners would still be required to show a reasonable belief that an offender would cause mental distress or physical harm under this interpretation, and the trial court would still need evidence of the mental distress element of the statute, Fondessy’s attorney argues.

Her attorney asserts that if the Supreme Court were to adopt the actual cause standard for mental distress, many instances of psychologically damaging conduct would go unpunished and not rise to the level of protection from the courts because actual mental distress is difficult to prove.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing Anthony Simon: Wesley Miller, 419.508.7892

Representing Dorothy Fondessy: Ernest Cottrell, 419.855.9955

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Did Heirs to Natural Gas and Oil Beneath Land Properly Assert Their Claims to Keep Those Rights Under Dormant Mineral Act?

Phillip Dodd et al. v. John Croskey et al., Case no. 2013-1730
Seventh District Court of Appeals (Harrison County)

ISSUE: Does the Ohio Dormant Mineral Act require a party seeking to preserve mineral interests in land to show that a “savings” event occurred during the 20 years before notice is made by another party seeking to acquire those mineral interests?

BACKGROUND:
In 2009, Phillip Dodd and Julie Bologna bought nearly 128 acres of land in Harrison County. The deed excluded the minerals rights to the property, which had been acquired decades earlier by Samuel and Blanche Porter, who both have since died. The appellees in this case are heirs of the Porters.

An oil and gas company contacted Dodd and Bologna seeking to buy the mineral rights beneath the land. On November 27, 2010, the couple placed a notice in a local newspaper stating that the oil and gas interests had been abandoned by the owners of those rights. Two days later, John W. Croskey filed a document in the county recorder’s office to retain his rights. Less than a month later, he submitted an “affidavit preserving minerals,” contending that he was a Porter heir and wanted to preserve the rights to the oil and gas on the property. Dodd and Bologna also filed an affidavit with the recorder’s office a few days later, asserting that the rights had been abandoned.

The couple then filed a lawsuit in February 2011 to establish their claim on the property’s mineral rights. However, the trial court determined by summary judgment that some of the Porter heirs did own the mineral rights to the land.

Dodd and Bologna appealed to the Seventh District Court of Appeals. While the appellate court ruled that the trial court drew some incorrect conclusions, it agreed that Croskey’s filing met the requirements of state law and preserved the oil and mineral rights for the Porter heirs.

Dodd and Bologna filed an appeal with the Ohio Supreme Court, which agreed to hear the case.

The lawyers for Dodd and Bologna assert that R.C. 5301.56, the Ohio Dormant Mineral Act, allows mineral rights to be abandoned and vested with the surface landowner in certain circumstances. But if specific events take place in the “twenty years immediately preceding the date on which notice is served or published,” the mineral rights cannot be abandoned, the attorneys explain.

In this case, though, no “savings event” was identified by the Porter heirs, Dodd and Bologna’s attorneys argue.

“The appellees had 60 days after the November 27 notice to file their claim to preserve their rights” they wrote in their brief to the court. “They did that. However, they clearly had to point to a savings event that occurred before November 27. In every part of the statute the same language is used: ‘20 years immediately preceding the date on which notice is served or published.’ The statute does not say ‘20 years before the claim is filed’.”

Three separate groups of appellees filed briefs with the Supreme Court.

Mary D. Porter Chaney was heir to two-tenths of the Porter estate, according to four of her granddaughters. Attorneys for the Porter Chaney heirs contend that the statute provides two ways for mineral rights holders to show their interests have not been abandoned.

Specifically, Ohio R.C. §5301.56(H)(1) states that a Holder, such as the Porter Heirs, must “not later than sixty days after the date on which [the Notice of Intent] was served or published ... file in the [recorder’s office] of each county where the land that is subject to the mineral interest in located one of the following:

(a) A claim to preserve the mineral interest in accordance with division (C) of [Ohio R. C. 5301.56];

(b) An affidavit that identifies [a Savings Event] that has occurred within the twenty years immediately preceding the date on which the notice was served or published under division (E) of [Ohio R. C. 5301.56].”

They argue that the Porter heirs met the requirements of option (a). “The document filed by Croskey on December 23, 2010 was termed an ‘affidavit’ because it was subscribed and sworn to by him,” the attorneys maintain. “But it was clearly a claim to preserve under R.C. §5301.56(H)(1)(a), as the trial court held, and not an affidavit under (H)(1)(b) identifying a savings event described in (B)(3) of the [act]. The Croskey Affidavit Preserving Minerals complied in all respects with the requirements of R.C. §5301.56(C).”

Division (C) details only the needed content and procedures for making a claim to preserve mineral rights, the attorneys for the Porter Chaney heirs assert. And option (a) clearly does not require those owning mineral rights to identify a “savings event,” the attorneys for the Porter Chaney heirs conclude.

In addition, they claim that these rights are further supported by a general legal principle that “the law abhors a forfeiture.”

Attorneys for 22 other heirs, including Croskey, make similar arguments in their brief to the court. They also assert that Dodd and Bologna were required by the statute to first try to reach those owning the mineral rights to this property by using certified mail before publishing a notice in the newspaper. Dodd and Bologna did not attempt to locate the Porter heirs before placing the notice, so they did not comply with the law, the Croskey appellees conclude.

The attorney for another Porter heir, Harriet C. Evans, agrees and contends that if the Supreme Court accepts Dodd and Bologna’s argument that option (a) requires identification of a savings event, then the requirement that the parties be notified by certified mail is no longer moot and would provide another reason why the appeals court’s decision should be affirmed.

An amicus curiae brief supporting the position of neither side has been submitted by the State of Ohio.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing Phillip B. Dodd and Julie R. Bologna: Paul Hervey, 330.364.1614

Representing Karen A. Chaney et al.: R. Jeffrey Pollock, 216.348.5400

Representing John W. Croskey et al.: Rupert Beetham, 740.942.8282

Representing Harriet C. Evans: Marquette Evans, 513.381.6222

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For Individuals in Nursing Homes Applying for Medicaid, When Do Limits on Transfers of Assets Go Into Effect?

Estate of Marcella Atkinson v. Ohio Department of Job and Family Services, Case no. 2013-1773
Fifth District Court of Appeals (Knox County)

ISSUES:

BACKGROUND:
In June 2000, Marcella and Raymond Atkinson transferred ownership of their home to a revocable trust. In April 2011, Mrs. Atkinson was placed in a nursing home, and her Medicaid application was submitted a few months after, on June 16.

On August 8 of that year, the couple’s home was moved from the trust and put in Mrs. Atkinson’s name. The next day, she transferred the home to Mr. Atkinson.

The county department of job and family services found that the transfer of the home, valued at $53,750, was improper because it violated federal and state Medicaid rules. While Mrs. Atkinson’s Medicaid benefits were approved, the agency temporarily excluded nursing-home care from her coverage because of the transfer.

Mrs. Atkinson lost administrative appeals of the ruling to the Ohio Department of Job and Family Services (ODJFS). After her death, her estate filed an appeal with the Knox County Common Pleas Court, which upheld the initial decision. On appeal, the Fifth District Court of Appeals agreed with the common pleas court. Mrs. Atkinson’s estate appealed to the Ohio Supreme Court, which agreed to hear the case.

Federal provisions to prevent spousal impoverishment apply when one spouse enters a long-term care facility and becomes eligible for Medicaid. The provisions allow the other spouse living at home (the “community spouse”) to keep enough income and resources to meet minimum monthly maintenance needs. The goal is to protect the community spouse from becoming impoverished while the institutionalized spouse uses assets to pay for care, and to prevent couples with enough money and resources from obtaining Medicaid coverage.

The amount allotted to the spouse at home is called the “community spouse resource allowance” (CSRA). It is calculated based on the couple’s financial picture on the date that continuous institutionalization begins. This date is also referred to as the “snapshot date.” To determine the CSRA, all of the couple’s income and resources are counted, subject to some exemptions, and half is allocated to the community spouse within certain limits. According to ODJFS, Ohio rules for determining resource eligibility come into play because the state pays about a third of the cost of providing Medicaid coverage to residents.

The timing of the Atkinsons’ transfers of their home in August 2011 occurred after the April date that Mrs. Atkinson went into the nursing home, but before the date she became eligible for Medicaid.

Attorneys for the Atkinson estate argue that federal law allows unlimited transfers of assets from the institutionalized spouse to the community spouse before it is determined whether the institutionalized spouse qualifies for Medicaid. They acknowledge that the CSRA statute does place limits on transfers. However, Atkinson’s attorneys contend that the limits apply only to transfers of assets made after eligibility is determined, so the cap didn’t go into effect in this case.

They note that the Sixth U.S. Circuit Court of Appeals decided the same legal question last year in Hughes v. McCarthy. Atkinson’s attorneys assert that the Sixth Circuit determined that the CSRA transfer cap statute specifically states that it applies to permitted transfers “‘as soon as practicable after the date of the initial determination of eligibility’ [and] [i]t does not say anything about a transfer made before the initial determination of eligibility, let alone that any pre-eligibility transfer that exceeds the CSRA is subject to a transfer penalty.”

Atkinson’s attorneys contend that the Sixth Circuit held that federal law outlines two distinct time periods – one before Medicaid eligibility when unlimited transfers between spouses are allowed, and one after Medicaid eligibility when transfers cannot exceed the CSRA cap.

They maintain that the Sixth Circuit’s interpretation was supported by amicus curiae briefs from the U.S. Department of Health and Human Services, the National Academy of Elder Law Attorneys, and the Ohio State Bar Association.

In addition, Ohio’s Medicaid regulations identifying improper transfers exempt the transfer of a couple’s home to one of the spouses, Atkinson’s attorneys argue.

Attorneys for ODJFS assert that the CSRA system is maintained through the CSRA transfer cap, which authorizes transfers to the community spouse up to a certain limit. However, contrary to the view of the Atkinsons, the agency’s attorneys argue that the CSRA transfer limits apply from the date of institutionalization, not the date Medicaid eligibility is decided, because the institutionalization date is the date on which the CSRA amount is based.

The ODJFS attorneys explain that for people seeking Medicaid coverage who are not in the specific situation described in this case, the agency reviews the applicant’s financial transactions during a “look-back period,” five years prior to the later of the institutionalization date or the application date. In that scenario, spousal exemptions do apply, allowing unlimited transfers and transfer of a primary residence between spouses.

But CSRA Medicaid provisions trump all other Medicaid eligibility rules, the agency’s attorneys note. They contend that the spousal exemptions are superseded by the CSRA rules once the snapshot date arrives.

When a house is directly owned by a couple or one of the spouses, it falls under an exemption and is not counted as a resource when calculating the CSRA. Because the Atkinsons’ house was placed in a trust, it was not directly owned by either of them, so it was counted for the CSRA as an asset, which “inflated” the CSRA amount allocated for Mr. Atkinson, the ODJFS attorneys assert. Then, when they transferred ownership of the house after the date Mrs. Atkinson entered the nursing home but before her Medicaid eligibility was decided, Mr. Atkinson received both the house and a CSRA calculated in part based on the house’s value. The transfer lessened the actual resources available to Mrs. Atkinson from their assets for her care, so the transfer was improper, the agency’s attorneys contend.

As far as Ohio’s regulations, the agency’s attorneys maintain that, after the snapshot date, the CSRA transfer cap kicks in and applies to all transfers of assets, including houses.

As far as the Hughes decision, the ODJFS attorneys first note that the Ohio Supreme Court is not bound by the Sixth Circuit decision and also contend that the federal court’s ruling “was simply wrong.”

“The Sixth Circuit held that the CSRA Transfer Cap could not apply to a pre-eligibility transfer because, in its view, such application would render ‘superfluous’ the Spousal Exemption, which allows unlimited spousal transfers during the five-year look-back period,” they write in their brief.

“The court was right that such an extended application of the CSRA Transfer Cap would render the other provision ineffective, but ODJFS never argued for applying it throughout the lookback, only after institutionalization. … Thus, the unlimited-transfer provision is not at all rendered superfluous. It is merely superseded under certain circumstances, as Congress intended.” They conclude that the reasoning in Hughes was flawed.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing the Estate of Marcella Atkinson: Alexander Reich, 216.622.8621

Representing the Ohio Department of Job & Family Services: Eric Murphy, 614.466.8980

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Does Lease to Drill for Natural Gas Qualify as Title Transaction under Dormant Mineral Act?

Chesapeake Exploration, L.L.C., et al. v. Kenneth Buell et al., Case no. 2014-0067
U.S. District Court for the Southern District of Ohio, Eastern Division

ISSUES:

BACKGROUND:
A federal district court in Ohio has submitted the two questions above to the Ohio Supreme Court for consideration. This case was filed in federal court, but the court has indicated that the issues are questions of state law and has stayed its proceedings in the case until the Ohio Supreme Court makes a ruling.

The parties in the case dispute ownership of oil, gas, and other mineral rights below 90 acres in Harrison County. According to the federal court’s opinion, the surface and mineral rights to the property were split in 1958 and have since been transferred several times. North American Coal Royalty Company currently owns the mineral rights under the land. Larchmont Resources and CHK Utica lease part of the mineral rights from North American. Chesapeake Exploration leases the remainder of the mineral interests, and Dale Pennsylvania Royalty earns a royalty.

Kenneth Buell was dismissed from the suit in November 2012. The owners of the surface property are Dennis Elias, Jeffrey and Janice Elias, and Arieh and Sunni Ordronneau.

The federal court filing states that the ODMA is designed to return mineral rights that have been severed from the property owner and are dormant back to the property owner after 20 years. The law was enacted in 1989 and amended in 2006. The 1989 version has an automatic re-vesting of the mineral rights back to the land owner if there are no “savings events” for 20 years. The 2006 ODMA, however, requires the property owner to give notice to the mineral rights holder first. The mineral rights owner then has 60 days to file a claim to preserve its rights or an affidavit identifying a savings event, the federal judge wrote.

One possible savings event that would restart the 20-year clock occurs when “‘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’ within the preceding 20 years,” according to the federal court filing. The judge adds that the parties disagree about which version of the law applies in this matter and whether a title transaction has taken place.

The Ohio Supreme Court’s practice rules allow a federal court “to certify questions of Ohio Law to the Supreme Court if the analysis may be determinative of the proceeding and there is no controlling precedent,” the judge wrote. “Certification helps to conserve resources, avoid ‘friction generating error,’ and acknowledge the state court’s status as the final arbiter on state law matters when a federal court is construing a state statute in the absence of controlling state law.”

Attorneys for Chesapeake Exploration and several of the other mineral rights lessees involved in natural gas drilling and production on the property argue that title transactions should include oil and gas leases.

“An oil and gas lease is a hybrid instrument, combining a traditional lease with a property interest and conveying a fee simple determinable, whose sole purpose is to allow for the production of minerals,” the Chesapeake attorneys write in their brief. “To find that an oil and gas lease does not maintain a mineral interest owner’s rights under the ODMA would flip the intent of the statute on its head: mineral interest owners and their lessees would be deprived of the rights they bargained for because they engaged in precisely the activity the act seeks to encourage.”

While they note that “title transaction” is not defined in the ODMA, they point out that it is defined in Ohio’s Marketable Title Act, and the ODMA is part of that law. Even though oil and gas leases aren’t explicitly mentioned as a type of title transaction in the marketable title act, Chesapeake’s attorneys argue that the list is not exhaustive, and an oil and gas lease qualifies as a title transaction under the definition.

They also assert that the termination of an oil and gas lease also makes the mineral interests the subject of a title transaction because it transfers the title from one party to another, which starts the 20-year clock before forfeiture again.

The North American Coal Royalty Company, which owns the mineral interests beneath the land, filed a separate brief in the case. The company’s lawyers contend that a lease that has been recorded shows an active mineral interest, so it meets the definition of a title transaction that starts the 20-year clock.

They also argue that the expiration of a lease is simply a lease transaction in reverse, returning the oil and gas rights to the lessor/owner, so it also qualifies as a title transaction. The lease expiration in this case occurred in 1989, which means the 20-year timeframe ended in 2009, North American’s attorneys maintain. Given that the ODMA was amended in 2006, the attorneys argue that notification by the property owners to the mineral rights owners that they intended to take back the mineral interests based on abandonment was required but did not occur.

Attorneys for the Eliases and the Ordronneaus counter that because the Marketable Title Act does not explicitly list an oil and gas lease as a title transaction, such leases cannot be treated as title transactions. Instead, they assert, these leases are licenses.

The property owners’ attorneys dispute the argument that the lease expiration in this case is also a title transaction. Even if the court were to agree that the lease itself is a title transaction, the lease’s expiration cannot be a title transaction because the termination of the lease was not recorded in the county recorder’s office, which is mandated by the ODMA, they argue. The lease at issue began in 1984. In this scenario, the attorneys conclude that the 20-year period ended in 2004, before the 2006 ODMA, so no notification was required by law, and the mineral rights automatically returned to the property owners.

An amicus curiae brief supporting the position of the companies with mineral interests has been submitted by Bedway Land & Minerals Company. The State of Ohio has filed an amicus brief supporting the property owners. The Ohio Oil and Gas Association has taken no position on the certified questions in this case, but has filed an amicus brief responding to one issue raised by the State of Ohio.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing Chesapeake Exploration, L.L.C., et al.: Nicolle Snyder Bagnell, 412.288.7112

Representing North American Coal Royalty Company: Jeffery Ubersax, 216.586.7112

Representing Dennis Elias, et al.: Gary Corroto, 330.455.6112

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