On April 16, 2025, the Ohio Supreme Court dismissed Crozier v. Pipe Creek Conservancy as improvidently accepted. Having a discretionary appeal dismissed as improvidently accepted means:
- You presented an issue of great general or public interest (or a constitutional question) worthy of the Supreme Court’s review;
- The Supreme Court accepted jurisdiction over your proposition of law;
- You and your opponents briefed the issue on the merits;
- You had the opportunity to participate in oral argument (and usually actually did so); and
- The Supreme Court dismissed the case without issuing a decision on the merits.
Seems like a waste, right?
The framework for dismissal
Rule 7.10 (still seems weird calling it “Rule” instead of “S.Ct.Prac.R.” after the most recent Supreme Court Rules of Practice Revision) provides for a dismissal of improvidently accepted jurisdictional appeals:
When a case has been accepted for determination on the merits pursuant to Rule 7.08, the Supreme Court may later find that there is no substantial constitutional question or question of public or great general interest, that leave to appeal in a felony case was not warranted, or that the same question has been raised and passed upon in a prior appeal. Accordingly, the Supreme Court may sua sponte dismiss the case as having been improvidently accepted or summarily reverse or affirm on the basis of precedent.
Rule 8.04 is nearly identical and addresses dismissal as improvidently accepted for cases accepted as a certified conflict.
Offensive use of the improvidently accepted rule for appellees
If you represent an appellee who was happy with the judgment below, just because the Supreme Court accepted jurisdiction doesn’t mean winning on the merits is the only way to win. This author, among others, has offensively used Rule 7.10 or Rule 8.04 to seek dismissal in the merits briefing (along with the actual merits).
There is the possibility of even moving for relief under Rule 7.10 or 8.04 (as in, nothing in the Supreme Court Rules of Practice prohibits it). However, these motions are usually denied. An argument can be made that making the motion even if briefing and oral argument occurs that the motion constitutes another chance at cueing the court as to the appropriate outcome.
There are a variety of circumstances in which a case is appropriate for dismissal as improvidently accepted: (1) the facts and circumstances underpinning the proposition of law have changed; (2) there are factual differences between the conflict cases and the case under review that eliminate any inconsistency in Ohio appellate decisions; and (3) as held in Crozier, the accepted proposition of law (even if adopted) would not result in reversal because it requires a legal predicate for which the appellant took the opposite position below.
What happened in Crozier?
This case is one of the frequent oil and gas cases coming before the Ohio Supreme Court. The dispute sought to address who had the oil and gas rights over property purportedly reserved in 1935. The issues presented implicated Ohio’s Dormant Mineral Act and Marketable Title Act.
The proposition of law accepted for review was: “‘root of title’ is fixed as that title transaction most recent to be recorded as of a date forty years prior to the time when marketability is being determined.”
On briefing to the Supreme Court, the appellants argued that the proper “roots of title” for the Marketable Title Act were the 1973 and 1974 deeds addressing the property. This would have been fine, if they had not argued at summary judgment before the Trial Court and before the Court of Appeals that the 1949 deeds were the “roots of title.”
The lower court’s decision used the 1949 deeds as the “roots of title,” but found a language issue that resulted in the summary judgment in the current appellants’ favor being reversed. The language issue itself was not accepted by the Ohio Supreme Court (although it was arguably raised in one of the other unaccepted propositions of law).
What’s the takeaway?
In drafting propositions of law, we often counsel that if one of the propositions of law is “dependent” upon another (i.e. it is not dispositive of the matter if another proposition is accepted), those linkages must be directly discussed.
Here, the appellants raised the appropriate issues, but when only one proposition was accepted, were forced to take a position contrary to what they had argued below. The concurring opinion in the dismissal calls that “waiver.”
The appellees appropriately argued in their memorandum opposing jurisdiction that the positions taken below constituted a waiver of the appellants’ proposition of law, but the Supreme Court was still intrigued enough to accept jurisdiction. The appellees then took the same position in their briefing – requesting dismissal as improvidently accepted – while at the same time arguing the merits of the proposition.
For the appellant, a dismissal as improvidently accepted can feel like a waste of time and money. But, as an appellee, it is another route to victory that should not be ignored if appropriate.