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Date: 07-17-2020

Case Style:

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

Case Number: 19 MO 0012

Judge: Search Results Web results Cheryl L. Waite

Court: IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT MONROE COUNTY

Plaintiff's Attorney:


Call 918-582-6422 for free help finding a great Dormant Mineral Act lawyer in Ohio.


Defendant's Attorney: As above

Description:







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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Case No. 19 MO 0012
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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Case No. 19 MO 0012
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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Case No. 19 MO 0012
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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Case No. 19 MO 0012
{¶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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Case No. 19 MO 0012
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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Case No. 19 MO 0012
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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Case No. 19 MO 0012
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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Case No. 19 MO 0012
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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Case No. 19 MO 0012
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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Case No. 19 MO 0012
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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Case No. 19 MO 0012
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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Case No. 19 MO 0012
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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Case No. 19 MO 0012
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.

Outcome: 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.

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