Ohio Supreme Court Rules on DMA's Notice Requirements for Abandonment of Mineral Interests
On December 17, the Supreme Court of Ohio held in Gerrity v. Chervenak that the circumstances of each respective case will control the efforts a surface owner must take before resorting to notice by publication under the Dormant Mineral Act (DMA).
In Gerrity, Timothy Gerrity sought a judgment quieting title and declaring him the owner of the mineral estate underlying a 108-acre property in Guernsey County. John Chervenak—trustee of the Chervenak Family Trust, owner of the surface estate—claimed that the mineral estate belonged to the trust because it had been deemed abandoned under the DMA. Mr. Gerrity, conversely, claimed that Mr. Chervenak’s use of the DMA was ineffective because he failed to comply with the Act’s notice requirements. The Guernsey County Court of Common Pleas awarded summary judgment to Mr. Chervenak, and the Fifth District Court of Appeals affirmed that decision.
The Supreme Court of Ohio held that Mr. Chervenak complied with the DMA’s notice requirements. In so doing, the Court rejected Mr. Gerrity’s argument that a surface owner must identify all mineral interest holders and attempt service by certified mail on each because the DMA acknowledges that identification of all mineral interest holders may not be possible and therefore permits notice by other means (i.e., publication). The Court declined to adopt a bright-line rule detailing the efforts a surface owner must expend before resorting to notice by publication, leaving the creation of such a rule to the legislature. Nevertheless, the Court provided some guidance by reviewing Mr. Chervenak’s notice efforts. Prior to resorting to service by publication, Mr. Chervenak searched the records of Guernsey County where the property was located and learned that the mineral interest holder of record had a Cleveland address. Mr. Chervenak then searched in the Cuyahoga County Recorder’s Office and Probate Court for records that would establish a more recent address or heirship information. Having found none, he mailed notice to the Cleveland address, which was returned undelivered. The Court concluded that those efforts were reasonably diligent and that Mr. Chervenak properly resorted to service by publication. The Court also concluded that, under the circumstances, Mr. Chervenak was not required to perform an online search.
In conclusion, the Court held that a “[r]eview 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.” The Court emphasized, however, that whether additional efforts are necessary “will depend on the circumstances of each case.”