Will the Ohio Supreme Court Clear up the Muddy Waters of the DMA?

Within the Ohio Dormant Mineral Act (hereinafter, “DMA”), there is often a question of the diligence a surface owner should employ when seeking the mineral owner to declare the mineral interest abandoned. The oft-cited case of Fonzi v. Brown¹ states that a surface owner is “not required to do the impossible and locate undiscoverable [mineral interest] holders.” However, the Appellants in Moore v. SWN Production Company, LLC², believe that undiscoverable mineral interest holders should be discovered, within reason.

The facts of Moore are relatively straightforward. To begin, the subject land was conveyed to George and Theresa Moore in 1979.³ Subsequently in 1982, the subject land was conveyed to Gary and Theresa Zollinger containing the following reservations:

Excepting and Reserving the ¾ of all royalty of oil and gas produced from these premises as reserved by former grantors and also reserving the ½ of all coal underlying these premises as reserved by former grantor.

Further Excepting and Reserving to the grantors, George M. Moore and Theresa Moore, husband and wife, all of the oil and gas, all of the coal, and all other minerals and mining and leasing rights not excepted or reserved by prior owners.⁴

Based on the aforementioned reservations, it was determined that George and Theresa Moore reserved ¼ of the oil and gas royalty (hereinafter, the “Moore Interest”).⁵ The facts further indicate that George Moore died testate in 2002, bequeathing Theresa Moore the Moore Interest.⁶ Whereafter Theresa Moore died testate in 2014, bequeathing the Moore Interest to the Appellants.⁷

In 2010, the Zollingers entered into an oil and gas lease, with SWN’s predecessor-in-interest, where a title examination was conducted.⁸ Upon completing the examination, counsel for the Zollingers sent certified mail of the Zollingers’ intent to declare the Moore Interest abandoned to the last known address of George and Theresa Moore, the same forwarding address the Moores had listed on the 1982 conveyance.⁹ After the certified mail elicited no response, notice was given through publication in the Monroe County Beacon, the county in which the subject land was situated.¹⁰ Subsequently in 2015, an Affidavit of Facts Related to Title was recorded in the official records of Monroe County, stating that the Moore Interest owners had been provided proper notice of abandonment.¹¹ In reliance on the Monroe County official records SWN’s predecessor-in-interest began producing oil and gas on the property in 2017.¹²

Finally in 2022, 12 years after the Moore Interest was deemed abandoned, the Appellants filed a five-count complaint against Appellees (SWN Production and the Zollingers), largely claiming that they owned the mineral interest and were not receiving royalties.¹³ The trial court, however, held the Zollingers had exercised reasonable diligence in locating and identifying the holders of the Moore Interest, and ultimately granting summary judgment in favor of the Appellees.¹⁴ The Appellants appealed, claiming two assignments of error, the first of which is decisive to the outcome.

The first assignment of error is the Appellants’ claim that the trial court erred in declaring that the Moore Interest was properly abandoned under the DMA.¹⁵ The basis for this assignment of error rests in the Ohio Rev. Code § 5301.56(E), which lays out the procedure for serving notice to mineral interest holders.¹⁶ The court begins their review by stating that the abandonment standard is “reasonable due diligence” which is based on the facts and circumstances of each individual case.¹⁷

Appellants’ contention behind the assignment of error is that a more in-depth internet search, beyond the public records, would have revealed a more pertinent address to send the certified mail to.¹⁸ Which would, presumably, result in the notice being received by the mineral interest holders at the time. The court relied on the cases of Gerrity v. Chervenak and Fonzi v. Brown to guide their analysis.

In Gerrity, the Supreme Court of Ohio held that an internet search is not required before publication of a notice of abandonment.¹⁹ Furthermore, Gerrity explained that reviewing publicly available records in the county in which the property is located will, generally, establish baseline reasonable due diligence.²⁰ Despite the foregoing, Gerrity does express that there are circumstances which will require a more in-depth search, namely; a surface owner’s independent knowledge or information revealed in the property records.²¹ Similarly in Fonzi, the Supreme Court of Ohio refined the Gerrity holding further to hold that; the search must go beyond county records when it is uncovered that the mineral holder did not live in the county of the mineral interest.²²

The court held that counsel for the Zollingers had complied with the reasonable diligence standards set out in both Gerrity and Fonzi.²³ The court based its reasoning on the fact that the certified mail was sent to the last known address of the Moores, the same address that George and Theresa Moore listed on the conveyance when the property was conveyed to the Zollingers.²⁴ Further, once the certified mail had not worked, counsel sent out notice via publication.²⁵ All of these steps rest firmly within the bounds of Ohio Rev. Code § 5301.56(E). Finally, the Appellants did no more than make an unsubstantiated conclusion that an internet search would have revealed a better address.²⁶ The record was completely devoid of any information that showed how searching further would have led the Zollingers and their counsel to a correct address.²⁷

Based on the above, the court held that the Zollingers successfully abandoned the severed mineral interest under Ohio Rev. Code § 5301.56(E).²⁸ Based on this holding, the Appellants’ second assignment of error was without merit.²⁹ Thus, the trial court grant of summary judgment in favor of SWN and the Zollingers was affirmed.³⁰

However, this case is not quite laid to rest. A notice of appeal has been filed in the Supreme Court of Ohio, along with a Memorandum in Support of Jurisdiction filed by the Appellants. Stay tuned.

Law clerk Matthew Gibson contributed to this article.

1. 2022-Ohio-901.
2. 2024-Ohio-5517.
3. Moore at ¶6.
4. Id. at ¶6-7.
5. Id. at ¶8.
6. Id.
7. Id.
8. Moore at ¶9.
9. Id. at ¶10.
10. Id.
11. Id. at ¶12.
12. Id.
13. Moore at ¶13.
14. Id. at ¶22.
15. Id. at ¶24.
16. Id. at ¶25.
17. Id. at ¶27, citing Sharp v. Miller, 2018-Ohio-4740, ¶17 (7th Dist.).
18. Moore at ¶31, citing See Gerrity v. Chervenak, 2020-Ohio-6705, ¶31, 34.
19. Gerrity v. Chervenak, 2020-Ohio-6705.
20. Id. at ¶36.
21. Id.
22. Fonzi, at ¶26.
23. Moore, at ¶31.
24. Id. at ¶32.
25. Id.
26. Id. at ¶35.
27. Id.
28. Moore, at ¶37.
29. Id. at ¶53.
30. Id. at ¶54.