Gerrity v. Chervenak (Slip Opinion) , 2020 Ohio 6705 ( 2020 )

[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-6705GERRITY, 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 must 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.14
January Term, 2020
{¶ 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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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.
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