Opinion

Gerrity v. Chervenak (Slip Opinion)

  • 162 Ohio St. 3d 694
  • 166 N.E.3d 1230
  • 2020 Ohio 6705
Court
Ohio Supreme Court
Filed
Dec 17, 2020
Status
Published
On the bench
French, J.
Cited by
8 cases
Authority
More cited than 48.5%

The opinion

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

Gerrity v. Chervenak, Slip Opinion No. 2020-Ohio-6705.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2020-OHIO-6705

GERRITY, APPELLANT, v. CHERVENAK, TRUSTEE, APPELLEE, ET AL.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as Gerrity v. Chervenak, Slip Opinion No. 2020-Ohio-6705.]

Dormant Mineral Act—Notice to holders of mineral interests—Reasonableness of

search for owners—After reasonable, unsuccessful search for holders,

surface owners may provide notice by publication.

(No. 2019-1123—Submitted June 17, 2020—Decided December 17, 2020.)

APPEAL from the Court of Appeals for Guernsey County, No. 18 CA 26,

2019-Ohio-2687.

_____________________

FRENCH, J.

{¶ 1} This appeal calls upon this court to once again address provisions of

the Ohio Dormant Mineral Act, R.C. 5301.56. In particular, we now consider the

reach of the notice requirements that R.C. 5301.56(E)(1) imposes as prerequisites

to deeming a severed mineral interest abandoned and vested in the owner of the

land subject to the mineral interest.

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Facts and Procedural Background

{¶ 2} Unlike many cases concerning mineral interests, this case’s facts are

neither disputed nor complicated. Appellee, John E. Chervenak, trustee of the

Chervenak Family Trust (“Chervenak”), owns approximately 108 acres of land in

Guernsey County, Ohio. The rights to the minerals underlying that property were

severed in a warranty deed, filed in November 1961, in which T.D. Farwell

transferred the surface rights but reserved to himself “all minerals (coal, oil and

gas) underlying” the property. John and Gloria Chervenak acquired the surface

estate by warranty deed recorded in November 1999. They transferred the property

to the Chervenak Family Trust by quitclaim deed recorded in March 2015.

{¶ 3} In 2012, a title search for the Chervenak property identified Jane F.

Richards, Farwell’s daughter, as the owner of the severed mineral rights, as

evidenced by a certificate of transfer filed with the Guernsey County Recorder in

October 1965. The certificate of transfer lists a Cleveland, Ohio address for

Richards. The Chervenak chain of title contained no other records regarding

ownership of the severed mineral interest.

{¶ 4} Richards died in 1997. At the time of her death, she was a Florida

resident. Appellant, Timothy Gerrity, is Richards’s son and sole heir. He claims

that he is the rightful owner of the mineral rights underlying the Chervenak property

as a result of the probate of Richards’s estate in Florida. The records filed with the

Guernsey County Recorder, however, contain no evidence of Richards’s death or

of Gerrity’s inheritance of the mineral interest.

{¶ 5} In June 2012, seeking to reunite the severed mineral interest with the

surface estate pursuant to the Dormant Mineral Act, the Chervenaks recorded with

the Guernsey County Recorder an affidavit of abandonment of the severed mineral

interest. As relevant here, the affidavit stated that notice of abandonment had been

sent by certified mail to Richards at her last known address—the Cleveland address

listed in the 1965 certificate of transfer—but had been returned, marked “Vacant-

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Unable to Forward.” It also stated, “Richards, her unknown heirs, devisees,

executors, administrators, relicts, next of kind [sic] and assigns” had been served

notice of abandonment by publication on May 4, 2012. In July 2012, the

Chervenaks filed with the Guernsey County Recorder a notice of the mineral-

interest holder’s failure to file a contrary claim and requested that the recorder note

in the margins of the 1961 deed and the 1965 certificate of transfer that the mineral

interest had been abandoned.

{¶ 6} Five years later, in August 2017, Gerrity filed this action in the

Guernsey County Court of Common Pleas to quiet title and for a declaratory

judgment that he is the exclusive owner of the mineral rights. Gerrity claims that

the Chervenaks’ purported use of the Dormant Mineral Act was ineffective because

they did not comply with the act’s notice requirements. Chervenak filed a

counterclaim to quiet title and for a declaratory judgment that by operation of the

Dormant Mineral Act, the trust is the owner of the mineral rights.

{¶ 7} Gerrity and Chervenak each moved for summary judgment. Without

any written analysis of the parties’ arguments or the applicable law, the trial court

entered summary judgment for Chervenak and declared the trust the owner of the

mineral rights. In a split decision, the Fifth District Court of Appeals affirmed the

trial court’s judgment. 2019-Ohio-2687, 140 N.E.3d 164. This court has accepted

Gerrity’s discretionary appeal. 157 Ohio St.3d 1440, 2019-Ohio-4211, 132 N.E.3d

700.

Analysis

{¶ 8} We have previously recognized the common practice in mineral-

producing regions of severing the rights to subsurface minerals from the rights to

the surface of land. Dodd v. Croskey, 143 Ohio St.3d 293, 2015-Ohio-2362, 37

N.E.3d 147, ¶ 7. We have further recognized that as severed mineral interests are

divided or transferred, often over long periods of time, it can become “difficult, or

even impossible, to find the owners of such severed mineral rights.” Id.; see also

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Corban v. Chesapeake Exploration, L.L.C., 149 Ohio St.3d 512, 2016-Ohio-5796,

76 N.E.3d 1089, ¶ 16. The General Assembly enacted the Dormant Mineral Act in

1989 as a supplement to the Ohio Marketable Title Act, R.C. 5301.47, et seq., to

address that challenge and to provide a mechanism for reuniting abandoned,

severed mineral interests with the surface estate. Dodd at ¶ 7-8.

{¶ 9} As amended in 2006, the Dormant Mineral Act provides that unless a

severed mineral interest is in coal or is coal related, the interest is held by the United

States, the state or any other political body described in the statute, or a saving event

enumerated in R.C. 5301.56(B)(3) has occurred within the preceding 20 years, the

mineral interest “shall be deemed abandoned and vested in the owner of the surface

of the lands” if the surface owner has satisfied the requirements of R.C. 5301.56(E).

R.C. 5301.56(B). R.C. 5301.56(E) states:

Before a mineral interest becomes vested under division (B)

of this section in the owner of the surface of the lands subject to the

interest, the owner of the surface of the lands subject to the interest

shall do both of the following:

(1) Serve notice by certified mail, return receipt requested,

to each holder or each holder’s successors or assignees, at the last

known address of each, of the owner’s intent to declare the mineral

interest abandoned. If service of notice cannot be completed to any

holder, the owner shall publish notice of the owner’s intent to

declare the mineral interest abandoned at least once in a newspaper

of general circulation in each county in which the land that is subject

to the interest is located. The notice shall contain all of the

information specified in division (F) of this section.

(2) At least thirty, but not later than sixty days after the date

on which the notice required under division (E)(1) of this section is

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served or published, as applicable, file in the office of the county

recorder of each county in which the surface of the land that is

subject to the interest is located an affidavit of abandonment that

contains all of the information specified in division (G) of this

section.

{¶ 10} A surface owner’s failure to satisfy R.C. 5301.56(E) precludes

application of the Dormant Mineral Act and renders unnecessary any further

analysis. Albanese v. Batman, 148 Ohio St.3d 85, 2016-Ohio-5814, 68 N.E.3d 800,

¶ 20.

{¶ 11} The question here is whether the Chervenaks satisfied R.C.

5301.56(E)(1). The Fifth District majority held that the Chervenaks complied with

the statute by (1) sending by certified mail to Richards’s last-known address a letter

containing the notice of abandonment, which had been returned as undeliverable,

(2) unsuccessfully searching Cuyahoga and Guernsey County records for further

information, and (3) then publishing notice to Richards and her unknown heirs.

2109-Ohio-2687, 140 N.E.3d 164, at ¶ 25-26.

{¶ 12} Gerrity asks this court to reverse the Fifth District’s judgment and to

adopt two propositions of law regarding R.C. 5301.56(E)(1). First, he asks the

court to hold that the Dormant Mineral Act requires strict compliance, such that a

surface owner must identify and attempt service by certified mail on every holder

of a mineral interest. He argues that the act does not apply unless all holders are

identified. Second, if the court disagrees with his position that the act requires the

identification of every holder of a severed mineral interest, Gerrity asks the court

to hold that a surface owner must use certain specified search methods designed to

locate all holders of the severed mineral interest to satisfy due process and the

reasonable-diligence requirement underlying R.C. 5301.56(E).

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Application of the Dormant Mineral Act is not limited to circumstances in

which every holder of a severed mineral interest has been identified

{¶ 13} Gerrity argues under his first proposition of law that the Dormant

Mineral Act requires a surface owner to both identify all holders of the severed

mineral interest and attempt to serve notice of abandonment to all holders by

certified mail before resorting to notice by publication. He maintains that the

severed mineral interest here could not be deemed abandoned and vested in the

Chervenaks under the Dormant Mineral Act because R.C. 5301.56(E)(1) required

the Chervenaks to identify and attempt to serve him, as a holder under the statute,

with notice of abandonment by certified mail. But reading R.C. 5301.56 as a whole

and in light of the General Assembly’s codified legislative intent, we reject

Gerrity’s arguments.

{¶ 14} To determine the meaning of a statute, we look first to the statutory

language. Boley v. Goodyear Tire & Rubber Co., 125 Ohio St.3d 510, 2010-Ohio-

2550, 929 N.E.2d 448, ¶ 20. We read statutory words and phrases in the context of

the whole statute and presume that the General Assembly intended the whole statute

to be effective. Commerce & Industry Ins. Co. v. Toledo, 45 Ohio St.3d 96, 102,

543 N.E.2d 1188 (1989); R.C. 1.47(B). When the meaning of the statutory

language is clear and unambiguous, we apply it as written; only if the language is

ambiguous will we look to additional means of statutory interpretation. Cheap

Escape Co., Inc. v. Haddox, L.L.C., 120 Ohio St.3d 493, 2008-Ohio-6323, 900

N.E.2d 601, ¶ 9, 13.

{¶ 15} Gerrity first maintains that application of the Dormant Mineral Act

is limited to those circumstances in which the owner of the surface estate identifies

every holder of the severed mineral interest. R.C. 5301.56(A)(1) broadly defines

“holder” to include “the record holder of a mineral interest, and any person who

derives the person’s rights from, or has a common source with, the record holder

and whose claim does not indicate * * * that it is adverse to the interest of the record

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holder.” As Richards’s sole heir and as successor to her interest in the mineral

rights, Gerrity qualifies as a “holder” under R.C. 5301.56(A)(1). But Gerrity’s

status as a “holder” under R.C. 5301.56(A)(1) does not resolve his first proposition

of law, which more broadly questions whether the Dormant Mineral Act applies

only to circumstances in which a surface owner identifies every holder. Answering

that question requires us to review the statute as a whole, evaluating words in their

context in order to arrive at a fair reading of the text. See Great Lakes Bar Control,

Inc. v. Testa, 156 Ohio St. 3d 199, 2018-Ohio-5207, 124 N.E.3d 803, ¶ 9.

{¶ 16} Because Gerrity is a “holder” under the Dormant Mineral Act, he

argues that the Chervenaks would be in compliance with the statute’s requirements

only if Gerrity were identified in the notices required by R.C. 5301.56(E)(1).

Again, R.C. 5301.56(E)(1) requires that prior to filing the affidavit of abandonment,

the Chervenaks, as the owners, should have done the following:

Serve notice by certified mail, return receipt requested, to

each holder or each holder's successors or assignees, at the last

known address of each, of the owner's intent to declare the mineral

interest abandoned. If service of notice cannot be completed to any

holder, the owner shall publish notice of the owner's intent to declare

the mineral interest abandoned at least once in a newspaper of

general circulation in each county in which the land that is subject

to the interest is located. The notice shall contain all of the

information specified in division (F) of this section.

Gerrity contends that because R.C. 5301.56(F)(1) states that the notice required

under R.C. 5301.56(E)(1) “shall contain * * * [t]he name of each holder and the

holder's successors and assignees, as applicable,” the only way that an interest can

be abandoned is if each holder is specifically named in the notice.

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{¶ 17} We cannot, however, read R.C. 5301.56(F)(1) in isolation. Its

mandate must be understood in light of the rest of the statutory scheme, including

R.C. 5301.56(E)(1), which contains an express provision for notice by publication

when service of notice by certified mail “cannot be completed to any holder.”

Plainly, when a holder cannot be identified, service by mail cannot be completed

on that holder. At that point, notice by publication is permitted under the express

terms of R.C. 5301.56(E)(1). It would strain credulity to read R.C. 5301.56(E)(1)

to allow notice by publication when a holder cannot be identified, but at the same

time to require identification of the holder in the notice itself.

{¶ 18} On the other hand, reading the provision to not require identification

of an unidentified holder is consistent with the qualifier in R.C. 5301.56(F)(1) that

the notice shall identify “each holder and the holder's successors and assignees, as

applicable.” (Emphasis added.) When notice is being provided through

publication because a holder cannot be identified, the identity of the holder is “not

applicable.”

{¶ 19} Considering R.C. 5301.56(F)(1) in the context of R.C.

5301.56(E)(1)’s explicit grant of authority for notice by publication, we think the

best reading of the statute is that a surface owner need not specifically identify by

name every holder, as broadly defined in R.C. 5301.56(A)(1).

{¶ 20} Such a reading is consistent with the General Assembly’s codified

legislative intent that the Dormant Mineral Act “be liberally construed to effect the

legislative purpose of simplifying and facilitating land title transactions by allowing

persons to rely on a record chain of title.” R.C. 5301.55. With an eye toward the

development of Ohio’s mineral resources, the General Assembly enacted the

Dormant Mineral Act to address the difficulty (and sometimes impossibility) of

identifying the owners of severed mineral interests and to encourage reliance on

record chains of title. Dodd, 143 Ohio St.3d 293, 2015-Ohio-2362, 37 N.E.3d 147,

at ¶ 8; Corban, 149 Ohio St.3d 512, 2016-Ohio-5796, 76 N.E.3d 1089, at ¶ 27.

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{¶ 21} Construing the Dormant Mineral Act as ineffective unless the

surface owner identifies every mineral-interest holder, including every successor or

assignee of a record holder, would negate the express legislative purpose of the act.

No matter the effort expended, a surface owner can never be certain that he has

identified every successor and assignee of every holder who appears in the public

record. Limitation of the Dormant Mineral Act in the manner Gerrity proposes

would lead to uncertainty and would open every reunification under the act to a

later challenge—and perhaps undoing—by a previously unknown heir or assignee

who did not appear in the public record. That uncertainty would inhibit the General

Assembly’s stated intention to promote the development of the state’s mineral

resources. By authorizing notice by publication, as opposed, for example, to

service by ordinary mail when service by certified mail cannot be completed, the

General Assembly has at least tacitly acknowledged that not all heirs of a party who

has reserved a mineral interest may be identifiable or locatable. And again, nothing

in the statutory text precludes the use of publication to notify classes of unknown

or potential holders. Consistent with the codified and undisputed purpose of the

Dormant Mineral Act, we reject Gerrity’s argument that the act operates only when

the surface owner specifically identifies by name every holder, as broadly defined

in R.C. 5301.56(A)(1).

{¶ 22} We also reject Gerrity’s related argument that a surface owner must

attempt service of notice by certified mail on every holder before the surface owner

may resort to notification by publication under R.C. 5301.56(E)(1). R.C.

5301.56(E) mandates that a surface owner “shall” comply with R.C. 5301.56(E)(1)

and (E)(2) before a severed mineral interest may vest in the surface owner.

{¶ 23} Read together, the introductory language of R.C. 5301.56(E) and the

first sentence of R.C. 5301.56(E)(1) provide that a surface owner “shall” serve

notice of the owner’s intent to declare the mineral interest abandoned “by certified

mail * * * to each holder or each holder’s successors or assignees, at the last known

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address of each.” A statute’s use of “shall” connotes a mandatory obligation unless

other statutory language clearly indicates a contrary intent. Wilson v. Lawrence,

150 Ohio St.3d 368, 2017-Ohio-1410, 81 N.E.3d 1242, ¶ 13. But the second

sentence of R.C. 5301.56(E)(1), with its express acknowledgement that certified-

mail service to each holder may not be possible, indicates that the legislature did

not intend service by certified mail to be mandatory. Id.

{¶ 24} The language of R.C. 5301.56(E)(1) does not mandate an attempt at

service by certified mail when it is apparent that such service cannot be completed.

The statute does not identify circumstances in which service of notice by certified

mail will be deemed incapable of completion, nor does it limit itself to those

circumstances in which notice by certified mail has been returned as undeliverable.

Rather, by its plain language, the statute operates anytime service of notice by

certified mail “cannot be completed to any holder.” This includes circumstances in

which a holder’s identity or address is unknown. “It would be absurd to absolutely

require an attempt at notice by certified mail when a reasonable search fails to

reveal addresses or even the names of potential heirs who must be served.” Shilts

v. Beardmore, 7th Dist. Monroe No. 16 MO 0003, 2018-Ohio-863, ¶ 15. When it

appears from the outset that service of notice cannot be completed by certified mail,

as when a holder is unidentified or unlocatable, R.C. 5301.56(E)(1) permits service

of notice by publication.

A surface owner must use reasonable diligence to identify and locate holders

of a severed mineral interest, but what constitutes reasonable diligence will

vary, based on the facts of each case

{¶ 25} Having rejected Gerrity’s arguments that the Dormant Mineral Act

applies only when a surface owner specifically identifies every holder and

additionally attempts to serve all such persons with notice by certified mail, we

must consider what R.C. 5301.56(E)(1) does require of a surface owner. We

therefore turn to Gerrity’s second proposition of law, under which he maintains that

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a surface owner must employ “reasonable search methods * * * designed to locate”

all holders before using notice by publication under R.C. 5301.56(E)(1).

{¶ 26} Before getting to the heart of his second proposition of law—that a

surface owner must employ reasonable search methods to identify all holders—

Gerrity first likens the publication provision in R.C. 5301.56(E)(1) to Civ.R.

4.4(A)(1) and R.C. 2703.24 and urges this court to import the requirements of those

provisions into the Dormant Mineral Act. Both Civ.R. 4.4. and R.C. 2703.24

involve service of process—a prerequisite for a trial court’s exercise of personal

jurisdiction over a defendant. See Lincoln Tavern, Inc. v. Snader, 165 Ohio St. 61,

64, 133 N.E.2d 606 (1956) (“It is axiomatic that for a court to acquire jurisdiction

there must be a proper service of summons or an entry of appearance”). Civ.R. 4.4

requires a party who is requesting service of process by publication to file an

affidavit that “aver[s] that service of summons cannot be made because the

residence of the party to be served is unknown to the affiant, all of the efforts made

on behalf of the party to ascertain the residence of the party to be served, and that

the residence of the party to be served cannot be ascertained with reasonable

diligence.” And R.C. 2703.24, which governs when an action may proceed against

a party whose name is unknown, requires the plaintiff to request a court order

authorizing publication of notice by filing an affidavit stating that a necessary

party’s name and address is unknown to the plaintiff.

{¶ 27} The Dormant Mineral Act’s extrajudicial process for reuniting

severed mineral interests does not implicate the jurisdictional concerns underlying

Civ.R. 4.4 and R.C. 2703.24. Nevertheless, Gerrity suggests that R.C.

5301.56(E)(1), to the extent that it may be used at all with respect to an unidentified

holder of a severed mineral interest, be read in pari materia with R.C. 2703.24, so

as to require the surface owner to file a judicial action and to request a court order

authorizing publication by filing an affidavit setting out the surface owner’s efforts

to identify and locate unknown or unlocatable holders. The General Assembly has

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not incorporated the requirements of Civ.R. 4.4 or R.C. 2703.24—or any similar

requirements—into the Dormant Mineral Act as prerequisites for using notice by

publication, and this court may not do so by judicial fiat. See Wheeling Steel Corp.

v. Porterfield, 24 Ohio St.2d 24, 27-28, 263 N.E.2d 249 (1970) (this court may not

“legislate to add a requirement to a statute enacted by the General Assembly”).

{¶ 28} Gerrity goes on to argue that at a minimum, a surface owner who

wishes to utilize the Dormant Mineral Act must exercise reasonable diligence to

identify all holders of the severed mineral interest. The Seventh District Court of

Appeals has recently evaluated efforts to identify heirs to a mineral interest using a

reasonableness standard. Sharp v. Miller, 2018-Ohio-4740, 114 N.E.3d 1285 (7th

Dist.), ¶ 17; Shilts, 7th Dist. Monroe No. 16 MO 0003, 2018-Ohio-863, at ¶ 15. It

has held that when “a reasonable search fails to reveal the names or addresses of

potential heirs who must be served,” a surface owner need not attempt to provide

notice by certified mail under R.C. 5301.56(E)(1). Sharp at ¶ 16, citing Shilts at

¶ 15. The court refused, however, to create a bright-line rule as to what constitutes

reasonable diligence: “Because the standard relies on the reasonableness of any

party’s actions, whether that party’s efforts constitute ‘due diligence’ will depend

on the facts and circumstances of each individual case.” Sharp at ¶ 17.

{¶ 29} Shilts involved the ownership of mineral rights reserved by ten

grantors in a 1914 deed. Shilts at ¶ 2. The appellant, an heir of one of the original

grantors, challenged the surface owner’s publication in 2012 of notice of an intent

to declare the mineral interest abandoned. The Seventh District rejected that

challenge because it concluded that the surface owner had made reasonable, albeit

unsuccessful, efforts—including a search through public records, coupled with an

Internet search—to locate the original grantors’ heirs. Id. at ¶ 12. It stated, “When

counsel’s search did not reveal information regarding these heirs, it became clear

that service could not be completed through certified mail.” Id. at ¶ 15. The court

held that the surface owner therefore appropriately used notice by publication,

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naming the original reserving parties “and their unknown heirs, devisees, executors,

administrators, relicts, and next of kin.” Id. at ¶ 14. Although the surface owner in

Shilts did conduct an Internet search as part of his search for the heirs, nothing in

the Seventh District’s opinion suggests that an Internet search is required to

demonstrate reasonable diligence, and Gerrity misconstrues the opinion by

suggesting otherwise.

{¶ 30} In Sharp, the Seventh District reiterated, “An attempt to provide

notice by certified mail is unnecessary where a reasonable search fails to reveal the

names or addresses of potential heirs who much be served.” Sharp at ¶ 16, citing

Shilts at ¶ 15. The surface owner in Sharp unsuccessfully searched available public

records, including probate records and recorded deeds, but not the Internet, for heirs

to a 1944 mineral reservation. Id. at ¶ 21. Consistent with its refusal to create a

bright-line rule, the Seventh District clarified that an Internet search is not a

necessary component of reasonable diligence. Looking to the facts and

circumstances of that case, the court found no evidence that “a simple Internet

search” would have revealed the heirs. Id.

{¶ 31} Gerrity and Chervenak both encourage this court to do what the

Seventh District has refused to do—adopt a bright-line rule that defines the steps a

surface owner must take to identify and locate holders of a severed mineral interest

to comply with R.C. 5301.56(E)(1). The bright-line rules they propose, however,

could not be more different. Gerrity proposes a rule that would require a surface

owner to search not only public records but also online resources, including

subscription-based genealogy services, and to document those efforts. Chervenak,

on the other hand, advances a rule that would require a surface owner to search only

the surface owner’s own record chain of title for the identity of mineral-interest

holders. We decline to adopt either proposed rule. Instead, because every case will

be different, we agree with the Seventh District that whether a party has exercised

reasonable diligence will depend on the facts and circumstances of each case. See

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Sharp, 2018-Ohio-4740, 114 N.E.3d 1285, at ¶ 17. If there is to be a bright-line

rule delineating what a surface-owner must do to comply with the Dormant Mineral

Act, it should come from the General Assembly, not from this court.1 Nevertheless,

without drawing a bright line, we can provide guidance in the context of the facts

before us, and we turn to those facts now.

{¶ 32} In support of his motion for summary judgment, Chervenak

submitted an affidavit from Barbara K. McCombs, the paralegal who performed the

title search of the Chervenak property in 2012. McCombs’s review of the

Chervenak chain of title identified Richards as the sole holder of the severed

mineral estate and listed a Cleveland address for Richards. McCombs conducted a

broader search of public records from the Guernsey County Recorder’s Office and

the Guernsey County Probate Court, but that search did not reveal a more recent

address, an estate or any heirs for Richards. McCombs did not stop her search

there, however. Because the certificate of transfer that memorialized Richards’s

acquisition of the mineral interest listed a Cuyahoga County address for Richards,

McCombs searched in the Cuyahoga County Recorder’s Office and the Cuyahoga

County Probate Court for records that would establish an estate for Richards, name

any heirs for Richards or provide a more recent address for Richards. As with her

search of the Guernsey County public records, McCombs’s search of the Cuyahoga

County public records offered no indication that Richards had died or had

transferred the mineral interest. Neither did it uncover a more recent address for

Richards.

1. There is currently pending before the General Assembly legislation to amend the Dormant

Mineral Act. See 2019 H.B. 100. As relevant here, the proposed legislation would allow service

by publication when a surface owner cannot attempt or complete notice by certified mail after

conducting a search of public records, and it would define “public record” as “any document

pertaining to a mineral interest filed or recorded with the auditor, recorder, and all courts situated

within each county in which the lands subject to the mineral interest are located.” Id.

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{¶ 33} Having uncovered no address for Richards more recent than that

listed in the 1965 certificate of transfer and no information regarding successors,

heirs or assigns of Richards’s interest in the mineral rights, the Chervenaks sent

notice by certified mail, directed to Richards at the Cleveland address. When that

notice was returned as undeliverable, the Chervenaks published notice of their

intent to declare the mineral interest invalid in The Jeffersonian, a newspaper of

general circulation in Guernsey County. Like the Fifth District majority, see 2019-

Ohio-2687, 140 N.E.3d 164, at ¶ 25, under the facts of this case, we conclude that

the Chervenaks exercised reasonable diligence to identify holders of the severed

mineral interest.

{¶ 34} Gerrity criticizes the Chervenaks for not searching the Internet for a

more recent address for Richards to determine whether Richards was still living

and to identify any heirs. Gerrity has suggested that the Chervenaks could have

located Richards’s obituary online and could have identified him as Richards’s heir

by conducting a genealogy search for Farwell, who originally reserved the mineral

interest, using the subscription databases on Ancestry.com. The record, however,

contains no specific evidence of what an Internet search would have revealed in

2012, when the Chervenaks followed the Dormant Mineral Act. We decline to

impose the requirements that Gerrity has proposed as a matter of law. The ever-

changing quantum and quality of information available on the Internet, the

inconsistent reliability of that information, and the variability of Internet-search

results all weigh against a bright-line requirement for online searches, let alone a

bright-line requirement that a surface owner consult any particular paid

subscription services, to identify heirs to a severed mineral interest.

{¶ 35} The surface owner’s chain of title is the necessary starting point for

determining the applicability of the Dormant Mineral Act. Before issuing notice of

an intent to declare a severed mineral interest abandoned, the surface owner must

first determine whether the Dormant Mineral Act applies. A severed mineral

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SUPREME COURT OF OHIO

interest may not be deemed abandoned and vested in the owner of the surface of

the lands subject to the interest if any of the six saving events set out in R.C.

5301.56(B)(3) has occurred within the previous 20 years. Four of those saving

events—each one that does not involve actual use of the mineral interest—requires

a filing, recording or notation in the property records of the county in which the

surface property is located. See R.C. 5301.56(B)(3)(a), (d), (e), and (f).

Accordingly, the surface owner must consult the public-property records in the

county in which the surface property is located to determine whether a saving event

has occurred. If no saving event is evident, the surface owner must also consult the

chain of title to determine the record holder or record holders of the mineral

interest—the starting point for determining who the surface owner must attempt to

notify pursuant to R.C. 5301.56(E)(1). In addition to property records in the county

in which the land that is subject to the mineral interest is located, a reasonable

search for holders of a severed mineral interest will generally also include a search

of court records, including probate records, in that county.

{¶ 36} Review of public-property and court records in the county where the

land subject to a severed mineral interest is located will generally establish a

baseline of reasonable diligence in identifying the holder or holders of the severed

mineral interest. There may, however, be circumstances in which the surface

owner’s independent knowledge or information revealed by the surface owner’s

review of the public-property and court records would require the surface owner,

in the exercise of reasonable diligence, to continue looking elsewhere to identify or

locate a holder. But whether that additional search is required will depend on the

circumstance of each case, and it was not required in this case. McCombs’s diligent

search of the public records in both Guernsey County and Cuyahoga County

revealed no indication that the sole record holder was deceased and offered no clue

as to the identity of any potential successors or assigns.

16

January Term, 2020

{¶ 37} Finally, to the extent that Gerrity raises a due-process challenge to

R.C. 5301.56(E)(1) or its application when a mineral-interest holder cannot be

identified, we reject that challenge based on the United States Supreme Court’s

holding in Texaco v. Short, 454 U.S. 516, 102 S.Ct. 781, 70 L.Ed.2d 738 (1982).

{¶ 38} In Texaco, the Supreme Court rejected constitutional challenges to

Indiana’s Dormant Mineral Interests Act, which operated to automatically

extinguish a severed mineral interest after a 20-year period of nonuse unless the

mineral-interest holder filed a claim to preserve the interest. Id. at 518-519. The

self-executing Indiana statute did not require a surface owner to take any action or

to provide any notice to the mineral-interest holder before the mineral interest

lapsed and reunited with the surface estate by operation of law. Id. at 520.

{¶ 39} The appellants in Texaco unsuccessfully claimed, in part, that the

lack of direct notice prior to the lapse of their mineral interests deprived them of

property without due process of law. Id. at 522. The Supreme Court disagreed and

held that a state may condition the permanent retention of a property right “on the

performance of reasonable conditions that indicate a present intention to retain the

interest.” Id. at 526. In rejecting the appellants’ due-process argument that they

were entitled to specific notice that their interests were about to expire, the court

stated, “Generally, a legislature need do nothing more than enact and publish the

law, and afford the citizenry a reasonable opportunity to familiarize itself with its

terms and to comply.” Id. at 532. It reasoned that mineral-interest holders may be

presumed to have knowledge of the terms of the act and that pursuant to the act,

“an unused mineral interest would lapse unless they filed a statement of claim.” Id.

at 533. It held that the state provided all constitutionally required notice by enacting

a statute that informed mineral-interest holders that their interests would be

extinguished after 20 years of nonuse. Id. at 537.

{¶ 40} The version of the Dormant Mineral Act at issue here has been in

effect since 2006, and Gerrity may be presumed to have had notice of the act’s

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SUPREME COURT OF OHIO

provisions, including the statutory actions he could have undertaken, either before

or after the Chervenaks filed their notice of abandonment, to prevent the mineral

interest from being deemed abandoned and vested in the Chervenaks. Given that

the Indiana statute at issue in Texaco, which permitted the extinguishment of a

mineral interest without any prior notice to the holder besides the existence of the

statutory scheme itself, passes constitutional muster, Ohio’s Dormant Mineral Act,

which affords the additional safeguards of notice by certified mail when possible

and notice by publication when certified-mail service is not possible, cannot be said

to violate Gerrity’s due-process rights.

Conclusion

{¶ 41} A surface owner attempting to comply with R.C. 5301.56(E) must

exercise reasonable diligence to identify all holders of the severed mineral interest,

but the inability to identify or locate all such holders does not, in itself, preclude

application of the Dormant Mineral Act. When a surface owner’s reasonable search

fails to reveal the names or addresses of holders of the mineral interest, the surface

owner may provide notice by publication, pursuant to R.C. 5301.56(E)(1), and need

not attempt to serve the unknown or unlocated holders by certified mail. Because

we conclude that the Chervenaks satisfied R.C. 5301.56(E), we affirm the judgment

of the Fifth District Court of Appeals.

Judgment affirmed.

O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, and STEWART, JJ.,

concur.

DONNELLY, J., concurs in judgment only.

_________________

Baker, Dublikar, Beck, Wiley & Mathews, and James F. Mathews; and

Finnucan & Associates, L.L.C., and John C. Finnucan, for appellant.

Kravitz, Brown & Dortch, L.L.C., Michael D. Dortch, and Richard R.

Parsons, for appellee.

18

January Term, 2020

Yukevich, Marchetti, Fischer, Zangrilli, P.C., and Mark Fischer, urging

reversal for amici curiae Harry A. Fonzi III and Linda Grimes.

Scullin and Cunning, L.L.C., and Sean Richard Scullin, urging reversal for

amici curiae Jeffrey H. Sharp, Bradley W. Sharp, Gregory C. Smith, J. Kent Smith,

Jeffrey S. Smith, Lelah Cline Smith, and Scott Johnson.

Theisen Brock, L.P.A., and Daniel P. Corcoran, urging affirmance for amici

curiae Allen B. Miller, Matilda J. Miller, Craig M. Miller, Tina E. Miller, Brenda

D. Thomas, Kevin M. Thomas, Gary Brown, the Billiter Family Land Trust, Kerry

R. Hartline, Mary E. Hartline, Doris Craig, Paul Craig, Eleanor Craig, Nina Ice,

Terry Ice, Sheila Stollar, Roger Stollar, Lisa Meyer, Kenneth Meyer Jr., Helen

Craig, Evelyn Craig, Carissa R. Baker, and Corey A. Stollar.

Chad A. Endsley, Leah F. Curtis, and Amy Milam, urging affirmance for

amici curiae Ohio Farm Bureau Federation and Guernsey County Farm Bureau.

Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A., Gregory W. Watts,

and Matthew W. Onest, urging affirmance for amici curiae Cassandra Ridenour,

Senterra, Ltd., Natalia Toma Trust, (by Stefan Toma, Trustee), Pora Putney Ridge

Properties, L.L.C., and Paines Run, L.L.C.

Emens, Wolper, Jacobs & Jasin Law Firm Co., L.P.A., Sean E. Jacobs, and

Cody R. Smith, urging affirmance for amicus curiae Ohio River Collieries

Company.

_________________

19

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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