HARRY A. FONZI, III and LINDA GRIMES v. GARY D. BROWN and ECLIPSE RESOURCE I, LP

COURT OF APPEALS OF OHIO

SEVENTH APPELLATE DISTRICT

{¶2} On June 2, 1952, Elizabeth Henthorn Fonzi (also referred to as Elizabeth

“Henthorne” Fonzi) inherited real estate and mineral interests located in Salem Township,

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Monroe County. The warranty deed that conveyed those interests noted that she resided

in Pittsburgh, Pennsylvania. Elizabeth was married to Harry A. Fonzi II (“Harry II”). The

marriage between Elizabeth and Harry II produced two children, Harry III and Linda.

{¶3} On October 4, 1952, Harry II and Elizabeth transferred the surface rights to

Donald and Eva Jean Brown. Within the deed, Harry II and Elizabeth reserved a one-half

interest in the royalty interests. The deed specifically stated that Harry II and Elizabeth

resided in Finleyville, Washington County, Pennsylvania. At some point thereafter, Harry

II and Elizabeth divorced and both later remarried. Neither second marriage produced

additional children. Harry II passed away on July 7, 1996. His probate paperwork reflects

that his children were co-executors of his estate and his sole heirs. According to

Appellants, Elizabeth died intestate on August 24, 1989. (Plaintiffs’ Motion in Opposition

to Defendant’s Motion for Summary Judgment, Exh. A.) Her second husband preceded

her in death.

{¶4} On January 13, 2006, Donald and Eva Jean transferred the surface rights

of the property to Appellee through a general warranty deed. On November 12, 2012,

Appellee entered into an oil and gas lease with Eclipse. The lease was recorded on

December 6, 2012. The lease provided a five-year primary term with an option to extend

the term for another five years. The lease also provided a typical secondary term that

extended the lease beyond the primary term in the event that oil and gas were producing

in paying quantities.

{¶5} Seeking to have the Fonzi interest abandoned, Appellee hired an attorney,

Kristopher Justice. According to Justice’s deposition, he determined that Harry II and

Elizabeth were both deceased, but could not locate any potential heirs. Justice stated

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that he searched the Monroe County public records and additionally conducted an

internet search.

{¶6} On March 21, 2013, Appellee published notice of intent to declare the Fonzi

interest abandoned in the Monroe County Beacon. On April 2, 2013, Appellee filed notice

of intent to declare the Fonzi interest abandoned. On April 29, 2013, Appellee recorded

an affidavit of abandonment.

{¶7} The timeline of events from the recording of the affidavit of abandonment

through the filing of the complaint is unclear in this matter. The facts do not indicate how

Appellants learned that their interests had been deemed abandoned. Regardless, on

May 12, 2017, Appellants filed a complaint against Appellee. Again, Eclipse was

originally a named defendant, however, it is not involved in the instant appeal. The

complaint sought declaratory judgment and quiet title. In summation, Appellants claimed

that Appellee failed to exercise reasonable due diligence in attempting to locate potential

heirs of the Fonzi interest before completing the abandonment process. According to

Appellants, because notice was improper, their interests in the minerals remain intact. In

the alternative, Appellants argued that the oil and gas lease between Appellee and

Eclipse constitutes a savings event that prevented abandonment.

{¶8} On July 20, 2017, Appellee filed an answer and counterclaim. The

counterclaim sought declaratory judgment and quiet title based on the DMA and common

law abandonment. Unlike the companion case, Fonzi v. Miller (case number 19 MO

0011), the counterclaim in this case did not raise the Marketable Title Act. On August 24,

2017, the trial court dismissed the common law abandonment claim raised within

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Appellee’s counterclaim. On January 24, 2018, Appellants filed an amended complaint

which added new facts but did not raise any new claims.

{¶9} On January 18, 2019, the parties filed competing motions for summary

judgment. On April 29, 2019, the trial court granted summary judgment in favor of

Appellee. The trial court made several findings: (1) Appellants lacked standing to bring

the action as they had not proved that they are lineal descendants of Harry II and

Elizabeth or that the mineral interest was transferred to them, (2) Appellee took

reasonable efforts to locate potential heirs, (3) Appellants cannot use the 2012 oil and

gas lease as a savings event as their interest is limited to royalties, and (4) Appellants

failed to file a claim to preserve. It is from this entry that Appellants timely appeal.

Summary Judgment

{¶10} An appellate court conducts a de novo review of a trial court’s decision to

grant summary judgment, using the same standards as the trial court set forth in Civ.R.

56(C). Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

Before summary judgment can be granted, the trial court must determine 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, (3) it appears from the evidence that reasonable

minds can come to but one conclusion, and viewing the evidence most favorably in favor

of the party against whom the motion for summary judgment is made, the conclusion is

adverse to that party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d

267 (1977). Whether a fact is “material” depends on the substantive law of the claim

being litigated. Hoyt, Inc. v. Gordon & Assoc., Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d

1088 (8th Dist.1995).

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{¶11} “[T]he moving party bears the initial responsibility of informing the trial court

of the basis for the motion, and identifying those portions of the record which demonstrate

the absence of a genuine issue of fact on a material element of the nonmoving party’s

claim.” (Emphasis deleted.) Dresher v. Burt, 75 Ohio St.3d 280, 296, 662 N.E.2d 264

(1996). If the moving party carries its burden, the nonmoving party has a reciprocal

burden of setting forth specific facts showing that there is a genuine issue for trial. Id. at

293. In other words, when presented with a properly supported motion for summary

judgment, the nonmoving party must produce some evidence to suggest that a

reasonable factfinder could rule in that party’s favor. Brewer v. Cleveland Bd. of Edn.,

122 Ohio App.3d 378, 386, 701 N.E.2d 1023 (8th Dist.1997).

{¶12} The evidentiary materials to support a motion for summary judgment are

listed in Civ.R. 56(C) and include the pleadings, depositions, answers to interrogatories,

written admissions, affidavits, transcripts of evidence, and written stipulations of fact that

have been filed in the case. In resolving the motion, the court views the evidence in a

light most favorable to the nonmoving party. Temple, 50 Ohio St.2d at 327.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED BY FINDING THAT THE APPELLANTS DID

NOT HAVE STANDING UNDER ODMA TO CHALLENGE THE

ABANDONMENT OF THE APPLICABLE ROYALTY INTEREST.

{¶13} Appellants point out that their motion for summary judgment included an

affidavit from Harry III and probate records from the estate of Harry II. The affidavit stated

that Harry III and Linda are the children of and the sole beneficiaries of both Harry II and

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Elizabeth. The probate records for Harry II demonstrate that Harry III and Linda are the

sole heirs to his estate. Appellants argue that this is more than sufficient to demonstrate

that they are lineal descendants of Elizabeth and Harry II. Appellee concedes that

Appellants have shown that they are the lineal descendants of Harry II and Elizabeth.

{¶14} There is currently no statutory or caselaw that specifies the level of evidence

that must be presented in order to prove individuals who claim to be heirs are, in fact,

heirs. Thus, this issue presents a matter of first impression.

{¶15} Appellants filed an affidavit from Harry III on April 7, 2017. (1/18/19

Plaintiffs’ Motion for Summary Judgment, Exh. 1.) The affidavit averred that Harry III and

Linda are the sole children of Harry II and Elizabeth. Both Harry II and Elizabeth are

deceased and Harry III and Linda are the sole heirs to the respective estates. Appellants

also filed documents pertaining to the estate of Harry II, including a petition for grant of

letters, oath of personal representative, and Harry II’s will. The petition for grant of letters

states that Harry II died on July 7, 1996 in Pittsburgh, PA. Harry III and Linda are listed,

along with their addresses, as the petitioners. Harry II’s address at the time of his death

was in Washington County, Pennsylvania. The oath of personal representative asserts

that Harry III and Linda are the executors of their father’s estate. In the final document,

Harry II’s will, he bequeathed all his personal and real property to his “two (2) children,

LINDA M. GRIMES and HARRY A. FONZI, III, in equal shares.” (Plaintiffs’ Motion for

Summary Judgment, Exh. 1.) Elizabeth died intestate. Her second husband preceded

her in death and their marriage did not produce any children.

{¶16} Appellants have presented sufficient evidence to demonstrate that they are

lineal descendants of Elizabeth and Harry II. In addition to Harry II’s probate records,

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Harry III filed an affidavit averring that he and his sister are the sole heirs to both their

parents’ estates. Appellee concedes this fact. Appellee appears to take issue only with

his contention that Appellants untimely presented this information. However, most of this

information was contained in the interrogatories, and both the affidavit and probate

records were attached to Appellants’ motion for summary judgment.

{¶17} As Appellants have established that they are lineal descendants of

Elizabeth and Harry II, their first assignment of error has merit and is sustained.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED BY FINDING THAT THE APPELLANTS'

MINERAL ROYALTY INTEREST WAS ABANDONED UNDER ODMA

{¶18} Appellants contend that Appellee failed to exercise reasonable due

diligence in searching for potential heirs to the Fonzi interest before serving notice by

publication. Appellants argue that Appellee’s counsel limited his search to Monroe

County public records despite having knowledge that Harry II and Elizabeth lived in

Washington County, Pennsylvania as specifically stated in the reservation deed.

Appellants contend that, had Appellee conducted a search in Washington County, the

estate documents for Harry II would have been easily found and would have revealed

that Harry III and Linda were heirs to the Fonzi interest. Appellants also contend that the

uniqueness of the name “Harry Fonzi” should have alerted Appellee that an internet

search may have been helpful.

{¶19} In response, Appellee argues that he performed a complete public records

search in Monroe County and that the law does not require a search beyond the public

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records in the county where the property is located. Thus, he argues that he was not

required to search any public records of Washington County. Even so, Appellee argues

that this is a matter involving in rem jurisdiction, which refers to jurisdiction pertaining to

property. Although interested parties must be given notice in DMA matters, Appellee

asserts that the property’s location is fixed and a trial court may reasonably expect that

the name of any person with an interest in the property would be available through a

public records search in the county where the property is located. As Ohio law does not

recognize the “whatever it takes” standard, Appellee asserts that the uniqueness of the

Fonzi name did not trigger any special duty.

{¶20} The notice requirements of the DMA are found within R.C. 5301.56(E)(1)

which provides:

Serve notice by certified mail, return receipt requested, to each holder or

each holder's successors or assignees, at the last known address of each,

of the owner's intent to declare the mineral interest abandoned. If service

of notice cannot be completed to any holder, the 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. The notice shall contain all of the

information specified in division (F) of this section.

{¶21} The parties spend great efforts comparing this subsection to cases that

have interpreted similar notice statutes. However, we have addressed the DMA notice

requirement in terms of the requisite level of reasonable due diligence in several other

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cases and need not delve into other notice statutes. See Harmon v. Capstone Holding

Co., 7th Dist. Noble No. 14 NO 0413, 2017-Ohio-4155; Shilts v. Beardmore, 7th Dist.

Monroe No. 16 MO 0003, 2018-Ohio-863, appeal not allowed in Shilts v. Beardmore, 153

Ohio St.3d 1433, 2018-Ohio-2639, 101 N.E.3d 464; Sharp v. Miller, 2018-Ohio-4740, 114

N.E.3d 1285 (7th Dist.); Miller v. Mellott, 2019-Ohio-504, 130 N.E.3d 1021 (7th Dist.).

{¶22} In Harmon, we held that a surface owner must attempt to locate potential

heirs of a mineral interest. Id. at ¶ 16. In Shilts, we acknowledged that a surface owner

may serve notice by publication if a reasonable search fails to reveal potential heirs to the

mineral interests. Id. at ¶ 14-15. We stressed that “[b]ecause 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.” Id. at

¶ 17.

{¶23} In Sharp, the appellants argued that an internet search should be required

in order to constitute reasonable due diligence. Id. at ¶ 17. We rejected that bright-line

approach, and held that the public records search was sufficient to constitute reasonable

due diligence as there was no reason to believe that, based on the facts available to the

surface owners, an exhaustive internet search would have been helpful in locating

potential heirs. Id. at ¶ 21.

{¶24} Appellee contends that our conclusion was based on the assertion that a

search would not have revealed the names of the heirs, and we considered the end-result

over the process employed. Contrary to Appellee’s assertion, our conclusion was not

end-result driven and does not require a researcher to prove that a specific search would

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have revealed the heirs. Appellee refers to a single sentence within the Sharp Opinion

where we stated that there was no evidence that a simple internet search would have

revealed the Sharps’ interest. Reading that sentence in context, we merely pointed out

that requiring an internet search in that case would have been unreasonable based on

the limited facts known to the researcher. The only names known to the researcher were

the last names “Smith” and “Poole.” Public records searches did not reveal the last name

“Sharp.” The appellants argued that a more broad-based internet search would have

connected the last name “Sharp” to “Smith” and “Poole.” However, the facts and

circumstances of that case did not reveal there was any specific knowledge that would

have assisted the researcher and lead him or her to broadly search the internet. Thus,

we determined that it would not have been reasonable to require the researcher to

conduct an exhaustive internet search in that case.

{¶25} Requiring a party to prove that a search would have revealed the specific

heirs is contrary to the spirit of the law, which clearly focuses on the reasonableness of

the opposing party’s search process. In reading the notice requirement, it states that a

party may serve notice by publication only after a search does not reveal heirs. Any given

search must be conducted in a manner that demonstrates the searcher exercised due

diligence in conducting the search and the search itself was reasonable. The entire goal

of the search is to uncover potential interest-holders so that they can receive appropriate

notice of the request to declare those interests abandoned. The search must, then, be

geared towards this goal in a reasonable, diligent fashion.

{¶26} This case is in no way similar to Sharp. Here, Appellants assert that it is

unreasonable for Appellee to have limited his search to Monroe County when he had

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specific knowledge that the Fonzi family did not reside in Monroe County and did reside

in Finleyville, Washington County, Pennsylvania. This is completely inapposite to the

facts of Sharp, where the surface owners lacked any specific knowledge that would have

reasonably extended their search beyond the public records of the county where the

property was located or would have assisted in some further search.

{¶27} The Fifth District similarly analyzed the reasonable due diligence standard

in Gerrity v. Chervenak, Trustee of Chervenak Family Trust, 2019-Ohio-2771, -- N.E.3d -

- (5th Dist.), appeal allowed by Gerrity v. Chervenak, 157 Ohio St.3d 1440, 2019-Ohio4211, 132 N.E.3d 700. In Gerrity, the surface owner searched the public records in two

counties. The first was Guernsey County, where the property was located. Id. at ¶ 25.

The second was Cuyahoga County, because Cuyahoga County was the last known

address of the mineral interest owner. Neither of these searches revealed information

leading to the identity of additional heirs. Because these searches did not reveal any

additional information that would have reasonably required or assisted in an extended

search, the Gerrity court found the two-county search to be reasonable. Id. at ¶ 26.

{¶28} In this case, Justice stated that he searched the public records within the

Monroe County courthouse in late 2011. (7/25/18 Justice Depo., p. 19.) According to

Justice, he began by searching the Monroe County Recorder’s Office records, where he

discovered the Fonzi reservation. (7/25/18 Justice Depo., p. 27.) At that point, Justice

learned from the reservation deed that the Fonzis lived in Finleyville, Washington County,

Pennsylvania.

{¶29} Justice searched the Monroe County Auditor and Probate records but did

not find any information regarding potential heirs during these searches. Justice was

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asked whether he attempted to search any public records in Washington County after

learning that the Fonzis resided in that county. Justice responded that he did not because

the property was located within Monroe County and he believed that any relevant records

should be located within that county. He also rationalized that the reservation deed was

old, as it was executed in 1952. (10/8/18 Justice Depo., p. 48.)

{¶30} He claims that he then conducted an internet search, but could not

remember the details of that search. He did remember finding a listing for “Harry Fonzi”

on a website called “FindAGrave.com,” however, the site did not provide any specifics.

(7/25/18 Justice Depo., p. 35.)

{¶31} We have made it abundantly clear that what constitutes reasonable due

diligence will depend on the facts and circumstances of each case. We again decline to

establish a bright-line rule requiring a specific search process, and reaffirm that what

constitutes reasonable due diligence will depend on the facts and circumstances of each

case. We emphasize that R.C. 5301.56(E)(1) makes it clear that since notice by

publication is a last resort, a sincere, diligent effort by the researcher is required before

service by publication is appropriate.

{¶32} The researcher in this case knew that the Fonzis lived in Washington

County, Pennsylvania at the time they filed their reservation. The reservation deed

expressly stated that this is where the Fonzis lived. As in Gerrity, the last known address

of a mineral interest holder was not in the county where the property was located. Justice

conceded that he learned this fact early in his search process. This fact alone would have

led any reasonable researcher to extend the search into Washington County,

Pennsylvania since it should be apparent at that point a search of Monroe County records,

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exclusively, may not lead to discovery of any Fonzi heirs. Justice admitted he failed to

take the next, logical step.

{¶33} Appellee urges that it is unreasonable to require him to extend a search into

another state, but provides no logical reason in support. The fact that the Fonzis lived in

another state does not relieve the researcher of the burden to conduct a reasonable,

diligent search. Appellee had specific knowledge that the Fonzis lived in Finleyville,

Washington County. The failure to conduct any search into the Washington County public

records after learning that this is where the Fonzis resided is per se unreasonable based

on the facts of this case. As such, Appellee failed to comply with the notice requirements

of R.C. 5301.56(E) and notice by publication was improper. Accordingly, Appellants’

second assignment of error has merit and is sustained.

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT ERRED BY FINDING THAT THERE WAS NO

GENUINE ISSUE OF MATERIAL FACT REGARDING WHETHER

APPELLEE EXERCISED REASONABLE DILIGENCE TO LOCATE THE

HOLDERS PRIOR TO PUBLISHING NOTICE OF ABANDONMENT

UNDER ODMA AND THAT APPELLEE'S NOTICE SATISFIED THE

REQUIREMENTS OF ODMA.

{¶34} Appellants alternatively argue that an oil and gas lease entered into

between Appellee and Eclipse acts a savings event under R.C. 5301.56(B)(3). The lease

is dated December 6, 2012, well before Appellee filed his affidavit of abandonment.

Because an oil and gas lease is a savings event and the lease was entered into within

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the twenty years before the affidavit of abandonment was filed, Appellants believe the

lease act to preserve their interests. Appellants concede that they are not a party to that

lease, they argue that they could never be a party to a lease, because they only own an

interest in the royalties.

{¶35} Due to the resolution of Appellants’ second assignment of error, however,

this assignment of error is moot.

Appellants argue that the trial court erroneously determined that they lacked

standing to contest the abandonment process. Appellants also argue that the trial court

erred in finding that Appellee exercised reasonable due diligence in attempting to locate

potential heirs before serving notice of abandonment by publication. Additionally,

Appellants argue that an oil and gas lease entered into between Appellee and Eclipse

acts as a savings event. For the reasons provided, Appellants’ arguments regarding

standing and notice of publication have merit. The remaining argument regarding the

lease is moot. As both parties filed competing motions for summary judgment, the parties

agree that there is no outstanding question of material fact in this case. Accordingly, the

judgment of the trial court granting summary judgment to Appellee is reversed and

summary judgment is entered in favor of Appellants.