2019 Ohio 2687
Ohio Ct. App.2019Background
- Mineral rights were severed in 1961 (Farwell reserved minerals; certificate of transfer to Jane F. Richards recorded 1965). Richards' last recorded address was in Cleveland; she died in Florida in 1997. Appellant Gerrity is her heir.
- Surface owners John and Gloria Chervenak acquired the surface in 1999; in 2012 they attempted to capture the mineral rights under the Ohio Dormant Mineral Act (ODMA), R.C. 5301.56, by sending certified mail and then publishing notice after mail was returned.
- Appellee (successor to the Chervenaks) recorded an affidavit of abandonment and a notice of failure to file in 2012; title transferred administratively to the surface owner.
- Gerrity sued in 2017 seeking declaratory judgment/quiet title, arguing appellee failed to exercise reasonable diligence to locate and serve him (Richards’ heir) and thus the ODMA procedures were defective.
- The trial court granted summary judgment to appellee; the appellate majority affirmed, holding the surface owner’s search (recorder and probate records in Guernsey and Cuyahoga counties and publication after returned mail) constituted reasonable efforts and publication was proper.
- Judge Delaney dissented, arguing Gerrity qualified as a “holder” entitled to certified-mail notice and that modern internet searches and other locator tools were required to satisfy reasonable diligence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellee satisfied ODMA notice/service requirements before declaring minerals abandoned | Gerrity: appellee failed to exercise reasonable diligence to find and serve him (Richards’ heir); certified mail to a 45‑year‑old address was insufficient and online/locator searches were required | Chervenak: mailed certified notice to last known (recorded) address; when mail was returned, searched county recorder and probate records and published notice as ODMA prescribes | Court: Affirmed — searches of recorder/probate records and publication after returned certified mail were reasonable under the facts; publication satisfied ODMA when certified mail failed |
| Whether appellee improperly relied on evidence first mentioned in a reply brief | Gerrity: appellee introduced new facts in reply (online obituary search) outside discovery and contradicted prior discovery responses | Chervenak: the extent of searches was disclosed in affidavit and initial motion; the reply footnote did not create new facts relied on by the court | Court: Affirmed — no evidence the trial court considered the newly-mentioned online-search recollection; appellee did not improperly rely on new evidence |
Key Cases Cited
- State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447 (Ohio 1996) (summarizes Civ.R. 56 summary judgment prerequisites)
- Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35 (Ohio 1987) (appellate review standard for summary judgment: same as trial court)
- Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (moving party bears initial burden to show absence of evidence on an essential element)
- Dresher v. Burt, 75 Ohio St.3d 280 (Ohio 1996) (framework for burdens in Ohio summary-judgment practice)