[Cite as Gerrity v. Chervenak,

.]

COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT

TIMOTHY D. GERRITY : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellant : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. -vs- : : JOHN E. CHERVENAK, TRUSTEE : Case No. 18 CA 26 OF THE CHERVENAK FAMILY : TRUST, ET AL. : : Defendant-Appellee : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 17-CV-402

JUDGMENT: Affirmed

DATE OF JUDGMENT: June 28, 2019

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

JAMES F. MATHEWS MICHAEL D. DORTCH 400 South Main Street RICHARD PARSONS North Canton, OH 44720 65 East State Street Suite 200 JOHN C. FINNUCAN Columbus, OH 43215-5240 97 West Drive Hartville, OH 44632 Guernsey County, Case No. 18 CA 26 2

Wise, Earle, J.

{¶ 1} Plaintiff-Appellant, Timothy D. Gerrity, appeals the August 16, 2018

judgment entry of the Court of Common Pleas of Guernsey County, Ohio, granting

summary judgment to Defendant-Appellee, John E. Chervenak, Trustee of the Chervenak

Family Trust.

FACTS AND PROCEDURAL HISTORY

{¶ 2} This case centers on the rightful owner of mineral rights of real property

located in Guernsey County, Ohio. The reservation of mineral rights was originally

created in a warranty deed from T.D. Farwell to Robert C. Shaefer, recorded on

November 6, 1961. Mr. Shaefer received the surface rights and Mr. Farwell reserved the

mineral rights to the subject property. The reserved mineral rights were conveyed by

certificate of transfer from Mr. Farwell's estate to his daughter, Jane F. Richards, recorded

on October 19, 1965.

{¶ 3} By warranty deed recorded November 22, 1999, Mr. Schaefer's surface

rights were transferred to John and Gloria Chervenak. On June 14, 2012, the Chervenaks

recorded an affidavit of abandonment of the subject mineral rights under the Ohio

Dormant Mineral Act (hereinafter "ODMA"). On July 9, 2012, the Chervenaks recorded a

notice of failure to file which resulted in them becoming the title owners of the mineral

rights. Appellee is the successor to the Chervenaks and the current surface owner of the

real property. Appellant is the sole descendant and heir of Jane F. Richards, and

therefore claims to be the rightful owner of the mineral rights via a probate action in

Florida. Guernsey County, Case No. 18 CA 26 3

{¶ 4} On August 4, 2017, appellant filed a declaratory judgment and quiet title

action against appellee and others not a part of this appeal, seeking a declaration that

the affidavit of abandonment is invalid and he is the exclusive owner of the mineral rights.

Appellant alleged the Chervenaks' efforts to capture the mineral rights under the ODMA

were insufficient because they failed to exercise reasonable diligence to locate him and

serve him notice. On September 11, 2017, appellee filed an answer and counterclaim for

declaratory judgment and quiet title, seeking to be named the owner of the mineral rights

under the ODMA. Appellee alleged the notice and service requirements under the ODMA

were met.

{¶ 5} Each party filed motions for summary judgment. On July 18, 2018,

appellant filed a motion to strike portions of appellee's reply brief, claiming the complained

of portions eluded to new factual information that was beyond the scope of prior discovery

that he relied upon. By entry filed August 12, 2018, the trial court found no genuine issues

of material fact to exist and granted summary judgment to appellee. The trial court

ordered appellee's counsel to submit a proposed entry. By final judgment entry filed

August 16, 2018, the trial court granted appellee's motion, declaring appellee to be the

rightful owner of the mineral rights and any claims of appellant were barred under the

ODMA.

{¶ 6} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

I

{¶ 7} "THE TRIAL COURT ERRED WHEN IT GRANTED THE APPELLEE'S

MOTION FOR SUMMARY JUDGMENT, TO APPELLANT'S PREJUDICE." Guernsey County, Case No. 18 CA 26 4

II

{¶ 8} "THE TRIAL COURT ERRED WHEN IT PERMITTED APPELLEE TO RELY

UPON EVIDENCE WHICH CONTRADICTED SWORN DISCOVERY RESPONSES

RELIED UPON BY APPELLANT, AND WHICH WAS INTRODUCED ONLY THROUGH

THE VEHICLE OF A REPLY BRIEF, TO APPELLANT'S PREJUDICE."

I

{¶ 9} In his first assignment of error, appellant claims the trial court erred in

granting summary judgment to appellee. We disagree.

{¶ 10} Summary Judgment motions are to be resolved in light of the dictates of

Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.

Zimmerman v. Tompkins,

,

(1996):

Civ.R. 56(C) provides that before summary judgment may be

granted, it must be determined that (1) no genuine issue as to any material

fact remains to be litigated, (2) the moving party is entitled to judgment as

a matter of law, and (3) it appears from the evidence that reasonable minds

can come to but one conclusion, and viewing such evidence most strongly

in favor of the nonmoving party, that conclusion is adverse to the party

against whom the motion for summary judgment is made. State ex. rel.

Parsons v. Fleming (1994),

,

,

citing Temple v. Wean United, Inc. (1977),

, 4 O.O3d

466, 472,

. Guernsey County, Case No. 18 CA 26 5

{¶ 11} As an appellate court reviewing summary judgment motions, we must stand

in the shoes of the trial court and review summary judgments on the same standard and

evidence as the trial court. Smiddy v. The Wedding Party, Inc.,

,

(1987).

{¶ 12} As explained by this court in Leech v. Schumaker, 5th Dist. Richland No.

15CA56,

, ¶ 13:

It is well established the party seeking summary judgment bears the

burden of demonstrating that no issues of material fact exist for trial.

Celotex Corp. v. Catrett (1986),

,

,

(1986). The standard for granting summary judgment is

delineated in Dresher v. Burt (1996),

at 293: " * * * a party

seeking summary judgment, on the ground that the nonmoving party cannot

prove its case, bears the initial burden of informing the trial court of the basis

for the motion, and identifying those portions of the record that demonstrate

the absence of a genuine issue of material fact on the essential element(s)

of the nonmoving party's claims. The moving party cannot discharge its

initial burden under Civ.R. 56 simply by making a conclusory assertion the

nonmoving party has no evidence to prove its case. Rather, the moving

party must be able to specifically point to some evidence of the type listed

in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has

no evidence to support the nonmoving party's claims. If the moving party

fails to satisfy its initial burden, the motion for summary judgment must be Guernsey County, Case No. 18 CA 26 6

denied. However, if the moving party has satisfied its initial burden, the

nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to

set forth specific facts showing there is a genuine issue for trial and, if the

nonmovant does not so respond, summary judgment, if appropriate, shall

be entered against the nonmoving party." The record on summary

judgment must be viewed in the light most favorable to the opposing party.

Williams v. First United Church of Christ (1974),

.

{¶ 13} In his motion for summary judgment filed May 11, 2018, appellant argued

he was the rightful "holder" of the mineral rights because appellee failed to follow the

statutory procedures under the ODMA related to notice and service.

{¶ 14} In his motion for summary judgment filed June 12, 2018, appellee argued

he was the rightful owner of the mineral rights because the statutory procedures were

followed and the mineral rights were correctly deemed abandoned under the ODMA in

2012.

{¶ 15} It is undisputed the mineral rights were transferred to Jane F. Richards upon

the death of her father. At the time of the recorded transfer in 1965, her address was

listed as being in Cleveland, Ohio. Ms. Richards died in Florida in 1997. Gerrity aff. at ¶

2. She left all of her real estate interests to appellant via Broward County Probate Case

No. PRC 97-8415. Id. at ¶ 3.

{¶ 16} In 1999, John and Gloria Chervenak became the owners of the surface

rights to the subject property. Ten years prior, on March 22, 1989, the Ohio General

Assembly passed the ODMA, codified in R.C. 5301.56. The ODMA permitted surface Guernsey County, Case No. 18 CA 26 7

owners to claim severed mineral interests deemed abandoned by the holder of the

mineral interests. In 2006, the ODMA was amended to include detailed procedures for

the surface owner to follow to capture the claimed abandoned mineral rights. The surface

owner must give the holder of the mineral rights notice of the intent to declare the mineral

rights abandoned. R.C. 5301.56(E)(1). In order to avoid a declaration of abandonment,

the mineral rights holder must either record a claim of preservation or an affidavit

identifying a "savings event" within the allotted time after service of the notice. R.C.

5301.56(C) and (H)(1). If the mineral rights holder fails to do so, the surface owner

perfects record title to the mineral rights by recording an affidavit of abandonment and a

notice of the mineral rights owner's failure to file. R.C. 5301.56(G) and (H)(2). Title of

the mineral rights is then administratively transferred to the surface owner by the county

recorder.

{¶ 17} The gravamen in this case is whether appellee perfected service of notice

of his intent to have the mineral rights declared abandoned.

{¶ 18} Under R.C. 5301.56(E)(1), a surface owner must first attempt notice by

certified mail "to each holder or each holder's successors or assignees, at the last known

address of each." According to the Guernsey County Recorder's Office, Ms. Richards

was the registered holder of the mineral rights. McCombs aff. at 7. In March 2012,

appellee attempted certified mail service to Ms. Richards's last known address, the

Cleveland address listed in the 1965 certificate of transfer. Id. at ¶ 12. The service failed

as the address was marked "Vacant – Unable to Forward." Id. A search of the county

recorder's records and the probate court records in Guernsey County (property's location) Guernsey County, Case No. 18 CA 26 8

and Cuyahoga County (last known address) did not reveal any other addresses for Ms.

Richards or any estate or heirs. Id. at ¶ 9 and 10.

{¶ 19} Pursuant to R.C. 5301.56(E)(1), if certified mail fails, 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." In May 2012, notice of abandonment was published in

the "The Jeffersonian," the newspaper of general circulation in Guernsey County.

McComb aff. at ¶ 13. Thereafter, in July 2012, because the mineral rights holder failed

to make a filing under R.C. 5301.56(C) and (H)(1), appellee filed a notice of failure to file

pursuant to R.C. 5301.56(H)(2). Id. at ¶ 14.

{¶ 20} Appellant argues appellee did not exercise due diligence in identifying him

as the record holder of the mineral rights and never attempted to send him notice via

certified mail. Apparently, the trial court disagreed as it awarded the mineral rights to

appellee. In neither its August 2, 2018 entry nor its August 16, 2018 final judgment entry

did the trial court specifically address the issue of service of notice. We can only presume

the trial court based its decision on service having been perfected since that was the sole

issue argued in the motions for summary judgment.

{¶ 21} In Shilts v. Beardmore, 7th Dist. Monroe No. 16 MO 0003,

,

¶ 14, appeal not accepted,

,

,

, our

colleagues from the Seventh District found an attempt to locate heirs by searching public

records and an online search constituted "reasonable efforts" to find any heirs. Because

the search was fruitless, publication was proper. The Shilts court at ¶ 15 acknowledged:

"It would be absurd to absolutely require an attempt at notice by certified mail when a Guernsey County, Case No. 18 CA 26 9

reasonable search fails to reveal addresses or even the names of potential heirs who

must be served."

{¶ 22} In Sharp v. Miller, 7th Dist. Jefferson No. 17 JE 0022,

, the Seventh District revisited the issue and stated the following:

In Shilts, we reviewed whether the following search efforts satisfied

the "reasonable due diligence" standard: probate records, public records,

Ohio Department of Natural Resources ("ODNR") records, and an internet

search. Id. at ¶ 14. We found that, based on the facts of that case, these

efforts satisfied the due diligence requirement. Id. at ¶ 15. Appellants ask

this Court to require these exact efforts in every case. Contrary to

Appellants' arguments, we did not establish in Shilts a bright-line rule or

definition of "reasonable due 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. In other words, reasonable actions in one case may not be

reasonable in another case.

{¶ 23} The primary difference between the case sub judice and the cases cited is

that appellee herein did not conduct an online internet search. In his appellate brief at 8,

appellant argues reasonable diligence required appellee "to search the internet for the

address of Jane Richards and for the identify (sic) her heir and his whereabouts." Guernsey County, Case No. 18 CA 26 10

{¶ 24} Ms. Richards's last known address was in Cleveland. She died in

December 1997 in the state of Florida where her will was probated. Gerrity aff. at ¶ 2 and

3. Appellant is an attorney and is a resident of Franklin County, Ohio. Id. at ¶ 5. His last

name is not Richards.

{¶ 25} Appellee sent notice to Ms. Richards's last known address in Cleveland

which was returned, and then searched the county recorder's records and the probate

court records in Guernsey County (property's location) and Cuyahoga County (last known

address). The searches did not reveal any other addresses for Ms. Richards or any estate

or heirs. Based upon the facts of this case, we find the searches that were conducted

constituted reasonable efforts. Ms. Richards passed away in 1997, fifteen years prior to

the search. Appellant averred her obituary was "readily available and discoverable

through an internet search" without any additional proof as to how "readily." Gerrity aff.

at ¶ 2. Appellant argues in his appellate reply brief at 3 that " 'reasonable diligence'

requires the use of online techniques, such as searches using paid subscription services

like ancestry.com, MyHeriitage.com, Beenverified.com, etc." The plain language in the

statute requires certified mail "to each holder or each holder's successors or assignees,

at the last known address of each." The registered holder was Ms. Richards. Appellee

sent certified mail to her last known address. When the mail was returned, appellee

furthered the search by searching probate records in two counties in a failed attempt to

find an estate and heirs. We do not find that the ODMA contemplates a worldwide

exhaustive search for a "holder."

{¶ 26} Because appellee was unable to complete service by certified mail "to each

holder or each holder's successors or assignees," service by publication was properly Guernsey County, Case No. 18 CA 26 11

obtained instead. Civ.R. 4.4 governing service by publication does not apply in this case.

R.C. 5301.56 does not reference Civ.R. 4.4, and the procedures for publication under the

ODMA are set forth in subsections (E)(1) and (F).

{¶ 27} Upon review, we find the trial court did not err in granting summary judgment

to appellee.

{¶ 28} Assignment of Error I is denied.

II

{¶ 29} In his second assignment of error, appellant claims the trial court erred in

permitting appellee to rely on facts which were first introduced in his reply brief. We

disagree.

{¶ 30} Appellant complains that appellee misstated the scope of his search.

Appellant argues in an interrogatory, appellee answered he searched the deed, tax, and

probate court records of Guernsey County and in his reply, he included a search of the

records of Cuyahoga County. Searches in both Guernsey and Cuyahoga counties were

first introduced by appellee in its motion for summary judgment filed June 12, 2018,

supported via the affidavit of Barbara K. McCombs. Appellee's claims regarding the

extent of his search were not first raised in his reply brief.

{¶ 31} Appellant also challenges appellee's assertion in footnote 1 of his July 3,

2018 reply brief to appellant's memorandum in opposition to appellee's motion for

summary judgment that Ms. McCombs "recently recalled that she also performed an

online searches (sic) of obituary records to attempt to determine if Jane F. Richards had Guernsey County, Case No. 18 CA 26 12

died and whether she had left any next of kin." In this same footnote, appellee

acknowledged he chose not to amend his prior summary judgment briefings to add this

information, but would do so if the trial court believed such evidence would be useful in

its analysis. Such an amendment if permitted by the trial court would have given appellant

an opportunity to respond.

{¶ 32} There is no evidence to suggest that the trial court considered this added

fact, and it was not considered by this court in its review.

{¶ 33} Assignment of Error II is denied.

{¶ 34} The judgment of the Court of Common Pleas of Guernsey County, Ohio is

hereby affirmed.

By Wise, Earle, J.

and Gwin, P.J.

Delaney, J. dissents.

EEW/db 328 Guernsey County, Case No. 18 CA 26 13

Delaney, J., dissenting.

{¶36} I respectfully dissent from the majority’s analysis and disposition of

appellant’s assignments of errors and would reverse the trial court’s granting of summary

judgment in favor of appellees.

{¶37} As an initial matter, I would find as a matter of law that appellant is a “holder”

of the subject mineral interests under R.C. 5301.56(A) and was entitled to be served by

certified mail pursuant to R.C. 5301.56(E) before restoring to service by publication.

{¶38} I disagree with the majority’s conclusion at ¶ 10 that appellee made

reasonable efforts to determine appellant’s name and address. At the time of the 2012

search conducted by appellee, the record holder Jane Richards would have been, at

minimum, 66 years old as the Certificate of Transfer from Thomas Farwell to Jane

Richards reflects she was an adult in 1965 and presumably as least 18 years of age.

{¶39} The record reflects appellee attempted certified mail service on Jane

Richards at a Cleveland address that was at least 45 years old, without determining if any

information existed outside the recorder and probate court records of Guernsey and

Cuyahoga counties as to her possible death or change of address. Given that very few

people remain at the same address for 45 years due to the transitional nature of modern

society, along with the availability of online obituaries, person locator websites and other

internet resources, such an attempt by Appellee falls woefully short of being reasonable

in the 21st century. The record also reflects credibility determinations exist as to

appellee’s witness who conducted the search. Guernsey County, Case No. 18 CA 26 14

{¶40} For these reasons, I would reverse the judgment of the trial court and

remand this matter for trial.