On March 24, 2022, the Supreme Court of Ohio once again addressed the level of diligence a surface owner must exercise in attempting to identify and locate holders of a severed mineral interest under the Ohio Dormant Mineral Act. The Court’s decision in Fonzi v. Brown, Slip Opinion No. 2022-Ohio-901, a consolidation of two cases previously decided by the Seventh District Court of Appeals, followed in the footsteps laid before it in its earlier decision in Gerrity v. Chervenak, 162 Ohio St.3d 694, 2020-Ohio-6705. Similar to the facts of Gerrity, a severed mineral interest holder resided in a county outside of that where the property was located, and there was evidence of this fact in the surface owners’ chains of title (here, in the deed into the holder and in the subsequent severance deeds). However, in Fonzi, while the surface owners conducted a search of the public records of the county where the property was located prior to serving notices of abandonment by publication under R.C. 5301.56(E), they did not search the public records of the county where the holder was said to have resided. Contrasting the actions of the surface owner in Gerrity, the Court held that, under these facts, the failure to search the public records of the county where the holder was said to have resided constituted a failure to exercise reasonable diligence. And, while the surface owners argued that the 2006 amendment to the Dormant Mineral Act created a second, extrajudicial avenue to abandonment (separate from the already-existing judicial avenue, which they argued does not require a reasonably diligent search by the surface owner), the Court rejected this argument, holding that the 2006 amendment did not create a second method of abandonment, but rather made the sole method more robust.
