On June 1, 2020, the Seventh District Court of Appeals once again addressed the level of diligence required to identify holders of a severed mineral interest under the 2006 version of Ohio’s Dormant Mineral Act (2006 DMA). In Fonzi v. Gary D. Brown & Eclipse Res., 2020-Ohio-3631, the appellee-surface owner filed his notice of abandonment by publication after conducting a search of the public records of Monroe County, Ohio, where his property was located, as well as a brief internet search. Again emphasizing that what constitutes reasonable due diligence will depend on the facts and circumstances of each case, the Court held that the appellee-surface owner did not exercise reasonable due diligence. Consequently, it was improper for the appellee-surface owner to serve his notice of abandonment by publication.

In Fonzi, the deed containing the mineral reservation (Severance Deed) indicated that the grantors, Harry Fonzi II and Elizabeth Fonzi (the parents of the appellants), resided in Washington County, Pennsylvania. Rejecting the appellee-surface owner’s contention that the law does not require a surface owner to search public records outside of the county where the land is located, the Court found that it was “per se unreasonable” for the appellee-surface owner not to extend his search to the public records of Washington County, Pennsylvania, as the Severance Deed gave him actual knowledge that the reserving parties resided there. Had he searched the public records of Washington County, Pennsylvania, he would have easily located Harry Fonzi II’s estate records which identified the appellants-holders. The fact that the reserving parties lived in another state “[did] not relieve the [appellee-surface owner] of the burden to conduct a reasonable, diligent search.” Based on the foregoing, the Court held that the appellee-surface owner failed to comply with the notice requirements of the 2006 DMA. It is also worth noting that the Court clarified an aspect of its earlier decision in Sharp v. Miller, stating that when determining the sufficiency of a surface owner’s diligence, the focus is on the “process employed” (i.e., the search itself) and not the end-result of the search (i.e., the discovery or non-discovery of heirs).

In addition to the issue of diligence required under the 2006 DMA, the Court also addressed a matter of first impression, namely, the level of evidence required to prove that a purported heir of a holder of a severed mineral interest is, in fact, an heir. The trial court held that the appellants-holders lacked standing to bring the initial action as they had not proved they are the successors-in-interest to the reserving parties. Here, the Court found that, based on Harry Fonzi II’s estate records and an heirship-related affidavit presented at the trial court level, the appellants-holders presented sufficient evidence to demonstrate that they are the successors-in-interest to the reserving parties.