In Fonzi v. Brown, Ohio Supreme Court Clarifies DMA Abandonment Procedure

By: Steven R. R. Anderson

Ohio’s Dormant Mineral Act (the “DMA”) allows a landowner to acquire mineral interests previously severed from his property through a process called abandonment. Before declaring a mineral interest abandoned, however, a landowner must provide notice to the current holder of the mineral interest.[1] The statute requires that this notice be given via certified mail unless such notice “cannot be completed”, in which case the landowner may instead publish the notice in a local newspaper.[2]

This notice requirement is critical because abandonment under the DMA is not automatic. The law gives a mineral interest holder, once notified, the opportunity to refute the landowner’s claim that the mineral interest has been abandoned, thereby preserving his ownership of the minerals.[3]

It seems obvious that, in all but the strangest circumstances, a notified mineral interest holder will choose to preserve his interest rather than to forfeit it for nothing by allowing the landowner’s abandonment claim to proceed unchallenged. That being the case, a landowner pursuing abandonment usually benefits when notice by certified mail cannot be completed. There is a very real possibility that a mineral interest holder will miss the notice published in a local newspaper and, as a result, fail to preserve his interest. On the other hand, the likelihood of that the same mineral interest holder missing a certified letter delivered directly to him is slim.

Unfortunately, the DMA does not spell out what a landowner must do to locate a mineral interest holder before declaring that notice by certified mail “cannot be completed” and resorting to notice by publication. The result has been a wave of litigation between landowners attempting to justify providing notice by publication and mineral holders seeking to demonstrate that notice by certified mail could have been completed had the landowner simply tried a little harder.

In 2020, Ohio’s Supreme Court addressed this issue when it held that “a surface owner…must exercise reasonable diligence to identify all holders of the severed mineral interest”.[4] At a minimum, this standard requires a landowner to conduct a thorough search of the public land records in the county in which the property is located.[5] But the Supreme Court left open the possibility that “reasonable diligence” might require a landowner to do more in certain circumstances.[6]

In the recently-decided cases Fonzi v. Brown and Fonzi v. Miller, the Supreme Court provided an example of circumstances in which this minimum search was insufficient to satisfy the “reasonable diligence” standard. There, Elizabeth Henthorn Fonzi owned property in Monroe County, Ohio, from which she reserved mineral interests.[7] The deed transferring the property to Fonzi indicated that she lived in Washington County, Pennsylvania.[8] Likewise, the deeds Fonzi later executed conveying the surface rights but reserving mineral interests stated that she still resided in that same county.[9] Nonetheless, the landowners who pursued abandonment under the DMA searched only the Monroe County records and limited internet sources; they made no attempt to locate Fonzi’s heirs in Pennsylvania before resorting to notice by publication.[10] The Supreme Court held that, in so doing, the landowners failed to exercise reasonable diligence.[11]

But what if a Pennsylvania search (no matter how reasonable) would still not have identified Fonzi’s heirs? In such a case, notice by certified mail could not have been completed in any event, and Fonzi’s heirs would, therefore, not have been prejudiced by the landowners’ lack of a Pennsylvania search. Should the burden be on the mineral interest holders to demonstrate injury – a lack of opportunity to preserve their mineral interests – by proving that notice by certified mail was possible?

The Supreme Court rejected this argument. It held that “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.”[12] It continued: “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 the 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.”[13]

Read the entire opinion here.

[1] R.C. § 5301.56(E)(1).

[2] Id.

[3] R.C. § 5301.56(H)(1).

[4] Gerrity v. Chervenak, 162 Ohio St.3d 694, 2020-Ohio-6705, 166 N.E.3d 1230, 1242.

[5] Id. at 1241.

[6] Id.

[7] Fonzi v. Brown, 2022-Ohio-901, ¶ 2.

[8] Id.

[9] Id.

[10] Id. at ¶ 3.

[11] Id. at ¶ 27.

[12] Id. at ¶ 22.

[13] Id. at ¶ 23.