# Fonzi v. Brown (Slip Opinion)

> Ohio Supreme Court · March 24, 2022 · 169 Ohio St. 3d 70

URL: https://www.frixlaw.com/law-library/cases/6326323

## Case

- **Court:** Ohio Supreme Court
- **Decided:** March 24, 2022
- **Citations:** 169 Ohio St. 3d 70; 202 N.E.3d 604; 2022 Ohio 901
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Fischer, J.
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Fonzi v. Brown, Slip Opinion No. 2022-Ohio-901.]

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. 2022-OHIO-901
FONZI ET AL., APPELLEES, v. BROWN ET AL., APPELLANTS.
FONZI ET AL., APPELLEES, v. MILLER ET AL., APPELLANTS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Fonzi v. Brown, Slip Opinion No. 2022-Ohio-901.]
Dormant Mineral Act—Abandonment process and required notice to holders of
mineral interests—Dormant Mineral Act establishes a single,
comprehensive method for surface owners to unify their land with
subterranean mineral interests through abandonment—Surface owners did
not exercise reasonable diligence when they failed to search public records
beyond the county where the mineral interests were located, despite having
knowledge that the mineral-interest holder did not reside in that county
when the mineral-interest reservation was made.
(Nos. 2020-0773 and 2020-0861—Submitted September 22, 2021—Decided
March 24, 2022.)
APPEALS from the Court of Appeals for Monroe County, Nos. 19 MO 0012,
2020-Ohio-3631, and 19 MO 0011, 2020-Ohio-3739.
SUPREME COURT OF OHIO

__________________
FISCHER, J.
{¶ 1} In these cases, we are asked to determine whether owners of the
surface rights to land complied with the requirements of the Dormant Mineral Act
in seeking to have mineral interests in that land deemed abandoned. Based on the
particular facts of these cases, we conclude that the surface owners did not exercise
reasonable diligence in attempting to identify all holders of the mineral interests,
and we accordingly affirm the judgments of the court of appeals.
I. FACTUAL AND PROCEDURAL BACKGROUND
{¶ 2} These cases concern two adjoining parcels of land located in Monroe
County. In 1952, Elizabeth Henthorn Fonzi acquired the land. (There is some
dispute whether Elizabeth Henthorn Fonzi’s husband, Harry A. Fonzi Jr., also
became an owner of the land. However, resolution of this issue is irrelevant to our
analysis, so for ease of discussion, we will presume that Elizabeth Henthorn Fonzi
was the sole individual that acquired the land.) In the deed transferring the property
now at issue in the Brown case to Fonzi, it was noted that she resided in Finleyville,
Washington County, Pennsylvania. Shortly thereafter, she transferred the surface
rights in the land to the predecessors-in-interest of the appellants (the “surface
owners”) in these cases. In both instances, Fonzi reserved an interest in the oil and
gas rights in the land. At the time that she made those reservations, Fonzi still lived
in Washington County, Pennsylvania, a fact that was expressly noted in the deed
transferring property from her to the predecessors-in-interest of the Miller surface
owners.
{¶ 3} In more recent years, the surface owners began the process to have
the Fonzi mineral interests in the properties abandoned. The surface owners hired
an attorney, who, after searching the Monroe County public records and conducting
limited Internet searches, failed to uncover any information about Elizabeth

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Henthorn Fonzi or locate any potential heirs. The surface owners did not conduct
any search beyond Monroe County.
{¶ 4} In 2012 (in the Miller case) and in 2013 (in the Brown case), the
surface owners published notices of intent to declare the Fonzi mineral interests
abandoned in a Monroe County newspaper. The surface owners in the Miller case
subsequently filed affidavits of abandonment in which they stated that notice of
intent to declare abandonment had been published in the newspaper. The surface
owners in the Brown case filed an affidavit of abandonment in which they asserted
that service on the mineral-interest holders could not be completed.
{¶ 5} The Fonzi heirs subsequently filed complaints in Monroe County for
declaratory judgment and seeking to quiet title, alleging in part that the surface
owners had failed to exercise reasonable due diligence in attempting to locate
holders of the Fonzi mineral interests before commencing the abandonment
process. They further asserted that because the abandonment process was flawed,
their mineral interests remain intact and they are owed their share of any royalties
under the Fonzi mineral interests. The surface owners filed answers and
counterclaims in which they sought, in part, a declaratory judgment and to quiet
title based on the Dormant Mineral Act (“DMA”), R.C. 5301.56, and common-law
abandonment. In the Miller case, the counterclaim also included a claim based on
the Ohio Marketable Title Act (“MTA”), R.C. 5301.47 et seq.
{¶ 6} The parties filed competing motions for summary judgment. The trial
court granted summary judgment in favor of the surface owners in both cases after
concluding, in part, that the surface owners had made reasonable efforts to locate
potential heirs and that the Fonzi heirs had failed to file timely claims to preserve
their interests. The trial court did not address the MTA counterclaim in the Miller
case.
{¶ 7} The Seventh District Court of Appeals reversed the trial court’s
decisions in both cases. Fonzi v. Brown, 7th Dist. Monroe No. 19 MO 0012, 2020-

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SUPREME COURT OF OHIO

Ohio-3631, ¶ 1; Fonzi v. Miller, 2020-Ohio-3739, 155 N.E.3d 986, ¶ 1 (7th Dist.).
In both cases, the court explained that before serving notice by publication under
R.C. 5301.56(E), the surface owners were required to exercise reasonable due
diligence in searching for potential heirs to the mineral interests and further, that
“what constitutes reasonable due diligence will depend on the facts and
circumstances of each case.” Brown at ¶ 22-23, 31; Miller at ¶ 25-26, 34. The
court reasoned that the surface owners knew that Fonzi lived in Pennsylvania at the
time that the reservations were made and nonetheless failed to conduct any search
beyond the Monroe County records; therefore, the court concluded that the surface
owners’ searches were unreasonable and that they had failed to comply with the
relevant notice requirements. Brown at ¶ 32-33; Miller at ¶ 35-36. The court
accordingly entered summary judgment in favor of the Fonzi heirs in Brown.
Brown at ¶ 36. In Miller, the court entered summary judgment in favor of the Fonzi
heirs on their DMA claims and remanded the case to the trial court for consideration
of the surface owners’ MTA counterclaim. Miller at ¶ 40.
{¶ 8} We accepted jurisdiction over five propositions of law in the surface
owners’ appeal in Brown and held the case for our decision in Gerrity v. Chervenak,
162 Ohio St.3d 694, 2020-Ohio-6705, 166 N.E.3d 1230. See 159 Ohio St.3d 1487,
2020-Ohio-4232, 151 N.E.3d 634. We subsequently accepted jurisdiction over the
surface owners’ appeal in Miller (including five propositions of law identical to
those raised in Brown and an additional sixth proposition of law) and held that case
for our decision in Gerrity as well. See 160 Ohio St.3d 1470, 2020-Ohio-4574, 153
N.E.3d 105.
{¶ 9} Following the announcement of this court’s decision in Gerrity, we
lifted the stays and ordered briefing on the second through fifth propositions of law
in both cases. 160 Ohio St.3d 1515, 2020-Ohio-6834, 159 N.E.3d 1175; 160 Ohio
St.3d 1516, 2020-Ohio-6834, 159 N.E.3d 1187. We also dismissed the sixth
proposition of law in Miller as improvidently accepted. 160 Ohio St.3d 1516, 2020-

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Ohio-6834, 159 N.E.3d 1187. We later granted the Fonzi heirs’ consent motion to
consolidate oral argument in the two cases. 164 Ohio St.3d 1426, 2021-Ohio-3021,
173 N.E.3d 496.
II. ANALYSIS
{¶ 10} The timing of the appeals in these cases places them in a
procedurally unique situation. The Seventh District issued its decisions before our
decision in Gerrity was announced, and accordingly, it conducted its analysis
without the benefit of the guidance set forth in Gerrity. Because Gerrity directly
informs our analysis of these appeals, we begin by briefly reviewing that decision.
A. The Gerrity Decision
{¶ 11} In Gerrity, 162 Ohio St.3d 694, 2020-Ohio-6705, 166 N.E.3d 1230,
a case that involved a mineral-interest holder who resided in a different county than
the county where the real property at issue was located, we held that in order to
provide proper notice under R.C. 5301.56(E) “[a] surface owner * * * must exercise
reasonable diligence to identify all holders of the severed mineral interest,” id. at
¶ 41. Our opinion did not establish any rebuttable presumptions or state that any
particular party carries a burden of proof. We explained that generally, a review of
public records in the county where the mineral interest is located will “establish a
baseline of reasonable diligence.” Id. at ¶ 36. We declined to draw a bright-line
rule in the case and instead “provide[d] guidance in the context of the facts before
us.” Id. at ¶ 31. We stated that in cases involving facts like those in Gerrity, the
reasonable-diligence standard does not require the surface owner to search records
outside of (1) the county where the mineral interest was located and (2) the county
where the mineral-interest holder resided, according to the address listed on the
certificate of transfer, when there was no indication that the mineral-interest holder
had died, moved, or transferred the mineral interest. Id. at ¶ 32, 36.

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SUPREME COURT OF OHIO

B. The DMA Creates One Method of Abandonment
{¶ 12} The issues implicated in the propositions of law before us are wide-
ranging. Those issues may be resolved, however, by application of the text of the
DMA and our decision in Gerrity.
{¶ 13} We explained in Gerrity that the DMA “provide[s] a mechanism for
reuniting abandoned, severed mineral interests with the surface estate.” Id. at ¶ 8.
The mechanism is called abandonment. Certain saving events, such as “actual
production or withdrawal of minerals,” insulate a mineral interest from the DMA’s
abandonment process for 20 years. R.C. 5301.56(B)(3)(b). The General Assembly
amended the DMA in 2006, see Sub.H.B. No. 288, 151 Ohio Laws, Part III, 5960,
5966, 5968-5969, to add a notice procedure that “afford[s] a mineral-interest holder
the opportunity to preserve that interest.” West v. Bode, 162 Ohio St.3d 293, 2020-
Ohio-5473, 165 N.E.3d 298, ¶ 23. Here, much of the surface owners’ argument
centers on the premise that as a result of the 2006 amendment, the process of
abandonment can occur in two ways: first, in a quiet-title action after 20 years pass
without a saving event and second, when the mineral-interest holder fails to respond
to a notice of abandonment in a process wholly outside of court. According to the
surface owners, the required method of serving notice—by mail versus by
publication—varies depending on the avenue of abandonment pursued by the
surface owner. That premise is faulty, however: the amendment did not create a
second method of abandonment but rather made the sole method more robust. To
explain why first requires elaboration on the abandonment process under the DMA.
{¶ 14} Abandonment is not available until 20 years pass without the
occurrence of a saving event. R.C. 5301.56(B)(3). After that point, a surface owner
may notify the mineral-interest holder of his or her intent to invoke the
abandonment process. R.C. 5301.56(B). The surface owner must “[s]erve notice
by certified mail * * * of the owner’s intent to declare the mineral interest
abandoned.” R.C. 5301.56(E)(1). But if service by mail “cannot be completed to

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January Term, 2022

any [mineral-interest] holder, the [surface] 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.” Id. The 2006 amendment enables the mineral-interest
holder, upon receiving notice of abandonment, to preserve his or her interest by
asserting that it “has not been abandoned.” R.C. 5301.56(H)(1); see also R.C.
5301.56(C)(1)(c). The mineral-interest holder has only 60 days from service of
notice to complete the necessary preservation steps. If the mineral-interest holder
fails to timely preserve and the surface owner subsequently files “a notice of failure
to file,” then “the mineral interest shall vest in the owner of the surface of the lands
formerly subject to the interest.” R.C. 5301.56(H)(2).
{¶ 15} The DMA creates a comprehensive method for abandonment. See
Dodd v. Croskey, 143 Ohio St.3d 293, 2015-Ohio-2362, 37 N.E.3d 147, ¶ 25-30.
Compliance with division E’s notice requirement is a condition precedent to
securing mineral interests through abandonment, R.C. 5301.56(B); Gerrity, 162
Ohio St.3d 694, 2020-Ohio-6705, 166 N.E.3d 1230, at ¶ 10, and even after proper
service of notice, the mineral-interest holder may retain his or her interest “that is
the subject of a notice under division (E).” R.C. 5301.56(H)(1). All DMA
abandonments must include notice under division (E). R.C. 5301.56(B). R.C.
5301.56(B), (E), and (H) are interlocking, and division (H)’s post-notice-
preservation option is an essential part of every abandonment procedure.
{¶ 16} The DMA allows the mineral-interest holder to reassert his or her
interest by filing either a “claim to preserve” or an “affidavit that identifies an event
described in division (B)(3)” upon receiving notice under division (E)(1). R.C.
5301.56(H)(1)(a) and (b). This makes sense because the intent of the DMA is to
put “dormant” mineral interests back to productive use. Chesapeake Exploration,
L.L.C. v. Buell, 144 Ohio St.3d 490, 2015-Ohio-4551, 45 N.E.3d 185, ¶ 25. Thus,
if the mineral-interest holder takes positive steps to reaffirm his or her interest upon

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SUPREME COURT OF OHIO

receiving notice, then that interest is active, not dormant, and the surface owner is
not entitled to take the mineral-interest holder’s property. If it were otherwise, then
even upon receiving notice, a mineral-interest holder would be left without
recourse. That would render service of notice to the mineral-interest holder a mere
formality, rather than a meaningful protection of property ownership.
{¶ 17} The surface owners read the DMA differently. They argue that the
2006 amendment created two alternative ways that a mineral interest may be
abandoned. First, they contend that if a surface owner files an action to quiet title,
a mineral interest is conclusively presumed to be abandoned if 20 years have
elapsed without a saving event. Under this view, the mineral-interest holder does
not enjoy the post-notice protections in R.C. 5301.56(H)(1)(a) and (b) in a quiet-
title action. The 2006 amendment, they assert, added a second, independent avenue
by which service of notice under R.C. 5301.56(E) initiates an extrajudicial process
of abandonment. Under this view, if a mineral-interest holder receives notice of
abandonment, he or she must act to preserve his or her mineral interest within 60
days under R.C. 5301.56(H)(1)(a) or (b) to avoid being divested of that interest.
{¶ 18} The surface owners argue that the first avenue is applicable here—
the mineral interest should be deemed abandoned because 20 years elapsed without
a saving event. They further contend that notification by publication is all that was
required because, under this avenue, there is nothing a mineral-interest holder can
do after being notified to preserve the interest. And because they believe notice by
publication was sufficient, the surface owners maintain that it does not matter if
they did not use reasonable diligence to effect personal service by mail.
{¶ 19} The surface owners’ argument is inconsistent with the statutory text
and our prior caselaw. As we have explained, the provisions in the DMA should
be read in the context of the entire act, not as a collection of isolated sentences.
Corban v. Chesapeake Exploration, L.L.C., 149 Ohio St.3d 512, 2016-Ohio-5796,
¶ 49 (Kennedy, J., concurring in judgment only in the answer to the first certified

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January Term, 2022

question and concurring in the answer to the second certified question); Gerrity,
162 Ohio St.3d 694, 2020-Ohio-6705, 166 N.E.3d 1230, at ¶ 17. R.C. 5301.56(B)
explicitly provides that an interest may be deemed abandoned only if both
conditions are met: 20 years without a saving event and proper notice under division
E. Thus, contrary to the position advanced by the surface owners, we have read the
DMA to allow a mineral-interest holder to avoid abandonment either by filing an
affidavit identifying a saving event or by filing a claim to preserve in response to
proper notice from the surface owner. Dodd, 143 Ohio St.3d 293, 2015-Ohio-2362,
37 N.E.3d 147, at ¶ 30; see also West, 162 Ohio St.3d 293, 2020-Ohio-5473, 165
N.E.3d 298, at ¶ 23. We have never suggested that a claim to preserve is
meaningless under the DMA when 20 years has elapsed without a saving event.
{¶ 20} The DMA provides a single method for a surface owner to procure
mineral interests through abandonment. Twenty years without a saving event,
service by mail (when feasible), and post-notice opportunity to preserve the mineral
interest are indispensable elements of the act’s abandonment process. We decline
the surface owners’ invitation to amend the DMA by “judicial fiat.” Gerrity at
¶ 27.
C. Surface Owners Must Exercise Reasonable Diligence in Attempting to Identify
Mineral-Rights Holders
{¶ 21} The surface owners’ failure to give proper notice under R.C.
5301.56(E) resolves this case. Pursuant to Gerrity, a surface owner who fails to
exercise reasonable diligence in attempting to identify all holders of the severed
mineral interest has not satisfied R.C. 5301.56(E). See Gerrity at ¶ 41. Because a
surface owner’s compliance with R.C. 5301.56(E) is a condition precedent to
having a mineral interest deemed abandoned, a surface owner’s failure to exercise
reasonable diligence in identifying and locating mineral-rights holders is a critical
error in the process. Therefore, a surface owner failing to exercise such reasonable
diligence is not entitled to abandonment under R.C. 5301.56(B).

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SUPREME COURT OF OHIO

{¶ 22} Requiring that a surface owner exercise reasonable diligence is not
tantamount to requiring the owner to engage in futile or vain acts. Surface owners
are not required to do the impossible and locate undiscoverable holders; instead,
they must exercise reasonable diligence in attempting to identify and locate the
holders of the mineral interest. In cases like those before us today, the issue is not
whether the surface owner could have located all mineral-rights holders by
exercising reasonable diligence. Instead, the question is whether the surface owner
did exercise reasonable diligence. If the surface owner did not exercise reasonable
diligence, then the mineral rights could not have been deemed abandoned under the
DMA. If, however, the surface owner did exercise reasonable diligence, then the
mineral rights can rightly be deemed abandoned under the DMA, so long as the
remaining requirements and conditions of the DMA have been met.
{¶ 23} We also note that R.C. 5301.56(E) requires that the surface owner
“shall” comply with the statutory notice requirements. Compliance with the
reasonable-diligence standard is entirely in the hands of the surface owner, and
thus, the surface owner has the burden of showing that he or she was reasonably
diligent in attempting to identify and locate the holders of the mineral interest
before resorting to service by publication. For these reasons, we conclude that in a
subsequent action challenging a surface owner’s compliance with the DMA’s
notification requirements, the surface owner has the burden of proving that he or
she complied with those requirements and that he or she exercised reasonable
diligence in doing so.
D. The Surface Owners Failed to Exercise Reasonable Diligence
{¶ 24} The critical question before us now, then, is whether the surface
owners exercised reasonable diligence in attempting to identify all holders of the
mineral interests in these cases. Answering that question involves a straightforward
application of Gerrity.

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January Term, 2022

{¶ 25} In Gerrity, the surface owner searched public records in both
Guernsey County, the county where the mineral interest was located, and Cuyahoga
County, the county in which the mineral-rights holder was last known to have
resided. 162 Ohio St.3d 694, 2020-Ohio-6705, 166 N.E.3d 1230, at ¶ 2-3, 32. After
failing to discover an updated address for the mineral-rights holder, the surface
owner sent notice by certified mail at the last known address. Id. at ¶ 33. The
surface owner attempted service by publication in Guernsey County after the
certified-mail notice was returned as undeliverable. Id.
{¶ 26} The facts of the cases before us today are markedly different from
those in Gerrity. In concluding that the surface owner in Gerrity exercised
reasonable diligence, we emphasized that the surface owner had conducted a
“diligent search of the public records” in both the county where the property was
located and the last known county of residence of the mineral-rights holder. Id. at
¶ 36. Here, however, the surface owners’ attempts to locate the mineral-rights
holders or the holders’ successors or assignees fell short of the attempts made in
Gerrity. The surface owners confined their searches to only the records for Monroe
County, where the property was located, and limited Internet research. The surface
owners did not attempt to search public records in Washington County,
Pennsylvania, despite the fact that the last known residence of the mineral-rights
holder was in that location. The Brown surface owners had notice that, at the time
the land was transferred to Fonzi, she resided in Finleyville, Pennsylvania (which
is in Washington County). Moreover, the deed transferring property from Fonzi to
the predecessors-in-interest of the Miller surface owners noted that, at the time of
that transfer, Fonzi still resided in Washington County, Pennsylvania. Unlike the
surface owner in Gerrity, here, the surface owners disregarded information about
the last known residence of the mineral-rights holder and made no attempt to make
any personal service. Instead, the surface owners proceeded straight to notice by
publication.

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SUPREME COURT OF OHIO

{¶ 27} We acknowledge, as we did in Gerrity, that “[r]eview of publicly
available 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.” Id.
at ¶ 36. Depending on the facts of each case, however, additional searching may
be required to satisfy the standard of reasonable diligence. See id. In the cases
before us in the present appeals, we conclude that the surface owners failed to
exercise reasonable diligence in attempting to identify all holders of the mineral
interests in question. We accordingly conclude that the surface owners did not
satisfy the notice provisions of R.C. 5301.56(E), and we affirm the judgments of
the Seventh District on this basis.
III. CONCLUSION
{¶ 28} The DMA establishes a single, comprehensive method for surface
owners to unify their land with subterranean mineral interests through
abandonment. As explained in Gerrity, surface owners seeking to have a mineral
interest declared abandoned under the DMA must exercise reasonable diligence in
attempting to identify all holders of the mineral interest. Here, because the surface
owners failed to search public records beyond the county where the mineral
interests were located, despite having knowledge that the mineral-interest holder
did not reside within that county when the reservation was made, and because the
surface owners failed to even attempt to serve notice on any holder—as required
by R.C. 5301.56(E)—before resorting to notice by publication, we conclude that
the surface owners failed to exercise reasonable diligence in these cases. We
accordingly affirm the judgments of the Seventh District Court of Appeals.
Judgments affirmed.
O’CONNOR, C.J., and KENNEDY, DEWINE, DONNELLY, STEWART, and
BRUNNER, JJ., concur.
_________________

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January Term, 2022

Yukevich, Marchetti, Fischer, Zangrilli, P.C., and Mark Fischer, for
appellees.
Theisen Brock, L.P.A., Daniel P. Corcoran, and Adam J. Schwendeman, for
appellants.
Yoss Law Office, L.L.C., Richard A. Yoss, and Melissa A. Schumacher,
urging reversal for amici curiae Richard A. Yoss and M. Marie Yoss.
Kravitz, Brown & Dortch, L.L.C., Michael D. Dortch, Richard R. Parsons,
and Justin M. Dortch; and Emens Wolper Jacobs & Jasin Law Firm Co., L.P.A.,
Sean E. Jacobs, and Cody R. Smith, urging reversal for amicus curiae Ohio River
Collieries Company.
_________________

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6326323. Public record. Not legal advice.