Disagreement over Dormant Mineral Act requirements attracts briefs from Ohio Farm Bureau Federation and Guernsey County Farm Bureau.

Disagreement over Dormant Mineral Act requirements attracts briefs from Ohio Farm Bureau Federation and Guernsey County Farm Bureau.

Another tussle between landowners in eastern Ohio and the holders of mineral rights has made its way to the state’s court of last resort. An heir to mineral rights under 108 acres in Guernsey County is staking a claim against the property owners, who took back the mineral rights in 2012.

The dispute, which the Supreme Court will hear next week, has drawn amicus briefs from onetime or current mineral rights holders and groups of property owners – from Belmont, Guernsey, Jefferson, and Monroe counties. The Ohio Farm Bureau Federation, Guernsey County Farm Bureau, and Ohio River Collieries Company also have filed amicus briefs in support of the property owners in this case.

Mineral Rights and Property Severed in 1960s
The mineral rights were split from the Guernsey County property in November 1961. Jane Richards’ father transferred the minerals rights (oil, gas, and coal) to her in 1965. When Richards died in 1997, her son, Timothy Gerrity, inherited her real estate interests.

John and Gloria Chervenak bought the surface property in 1999. The Chervenaks wanted to merge the property with the mineral interests. In 2012, they searched Guernsey County records and found Richards was the “record holder” of the mineral rights under their land. They sent a notice by certified mail to the Cleveland address listed for Richards in the records, stating that they planned to declare the mineral rights abandoned.

The notice was returned undelivered, so the Chervenaks published a notice in The Daily Jeffersonian newspaper. When there was no response, the couple submitted an “affidavit of abandonment” with the Guernsey County Recorder’s Office, and the title to the mineral rights transferred to them.

Heir of Former Mineral Rights Holder Files Lawsuit
In 2017, Gerrity sued John Chervenak, the trustee for the family’s trust. Gerrity alleged that he wasn’t properly notified of the Chervenaks’ actions and he still owned the mineral rights. The trial court, however, granted summary judgment to Chervenak.

The Seventh District Court of Appeals upheld the trial court’s decision, and Gerrity appealed to the Ohio Supreme Court, which accepted the case.

Heir Argues Property Owners Didn’t Make Reasonable Efforts to Find Him
Gerrity argues that the Ohio Dormant Mineral Act (DMA) requires landowners to identify all mineral rights holders and that the notice of abandonment must be served on each holder. He maintains the Chervenaks didn’t follow the law because they didn’t try to identify and locate him.

He also asserts that property owners must demonstrate reasonable due diligence in attempting to find mineral rights holders. Describing the Chervenaks’ search of county records as “a mere gesture, at best,” Gerrity’s brief argues they could’ve used readily available internet resources to discover that he was Richards’ son and a longtime Columbus resident.

Property Trustee Contends Heir Had Options to Keep Mineral Rights
Chervenak notes that the DMA’s purpose is to simplify and facilitate land title transactions. The act provides several steps, referred to as “savings events,” that holders of severed mineral interests can take to preserve their rights. Chervenak states that Gerrity, however, did none of them – such as recording a certificate transferring the rights to himself when his mother died, or selling, leasing, or developing the minerals on the property.

The reasonable due diligence standard that Gerrity wants is unworkable and isn’t required by the DMA, Chervenak maintains. He concludes that his family took each of the steps mandated in the law.

Oral Argument Details
The Supreme Court will consider four cases on June 16, including three that involve conflicts among appellate court rulings. The Court will hear four more appeals, including Gerrity v. Chervenak, on June 17. Oral arguments begin at 9 a.m. Because of the COVID-19 pandemic, the Court will hold its session by videoconference. All arguments are streamed live online at sc.ohio.gov, and broadcast live and archived on The Ohio Channel.

In addition to these highlights, the Court’s Office of Public Information released preview articles today about each case, available through the case-name links.

Tuesday, June 16
In State v. Pettus, a man opened accounts at four Cincinnati banks in 2016, deposited fake checks, and walked away with $20,000 in three weeks. The Hamilton County prosecutor combined the individual misdemeanor thefts into single theft offenses for each bank, making them felonies. The offender and the prosecutor disagree about whether the state law allowing thefts to be combined for a more serious charge applies only when the offenses involve victims who are elderly, disabled, military members, or military spouses.

An initiative to examine untested rape kits led to the 2017 indictment of a Cuyahoga County man for three rapes committed between 2003 and 2006. Because this was the man’s first time being indicted for sexual offenses, prosecutors included a sexually violent predator specification for all three attacks. The man was convicted of the rapes, and the specifications elevated his punishment to include sentences up to life in prison . In State v. Townsend, the man maintains his sentence was unconstitutional because two of the crimes occurred before a change in state law allowing first-time offenders to be charged with sexually violent predator specifications.

A Lakewood man died in August 2016 from anti-psychotic medication and fentanyl. A local drug dealer had supplied a heroin-fentanyl mixture to the man through the man’s neighbor. The drug dealer was acquitted of involuntary manslaughter but was convicted of corrupting another with drugs along with other offenses. The dealer in State v. Price maintains that the court gave jury instructions that confused the jury as to what was necessary to find him guilty. The county public defender filed an amicus brief supporting this position. The county prosecutor responds that the jury was told the correct steps for determining causation in Ohio. The attorney general backs the prosecutor’s view.

 In 2012, a Trumbull County man was sentenced to five years of community control sanctions for burglary. A little more than a month before the supervision was to expire in 2017, a warrant for the man’s arrest was issued for his failure to report to his probation officer in November 2016. Without stating an exact length of time, the trial judge extended, or tolled, the man’s community control. He again violated the terms by failing to report, and after he was arrested in July 2018, the judge revoked his community control and sentenced him to two years in  prison. In State v. Rue, the man asserts the trial court lacked jurisdiction to revoke his community control because the five-year term expired in 2017.

Wednesday, June 17
In June 2017, an electric utility notified a Harrison County family that it intended to use herbicide to clear trees and brush on their land near the company’s high voltage electric line. The company has easements since 1948 allowing the company “the right to trim, cut and remove” trees and other obstructions near power lines. The family objected to the use of herbicides and asked the Harrison County Common Pleas Court for an injunction to block the chemical spraying. In Corder v. Ohio Edison Company, the utility maintains that the Public Utilities Commission of Ohio has exclusive jurisdiction over the matter, and any issues about brush removal must be taken to the commission.

The Cuyahoga County medical examiner determined that a 5-year-old died in March 2017 from blunt-force injuries. The child’s mother and the mother’s partner were charged in the death. The mother’s partner was found guilty of reckless homicide rather than aggravated murder, and also convicted of “felony murder,” felonious assault, and endangering children. Sentenced to 25 years to life, the partner argues in State v. Owens that the jury should’ve been instructed on allowing a conviction for reckless homicide on the felony-murder count. Noting that the defense’s medical expert testified seizures caused the death, the woman contends that she didn’t intend to, or purposely, kill the child. The prosecutor counters that the woman was found guilty of felonious assault, which supported the jury’s conviction for felony murder.

A Richland County man pleaded guilty to a fifth-degree drug possession felony and was sentenced to two years of community control. Part of his sentence included completion of the county’s “Re-Entry Court” and another program. After he was terminated from the program, the trial court extended his community control with a new sanction, requiring that he complete a program at a halfway house. He violated the halfway house rules and was kicked out, which led to the trial court terminating his community control and sentencing him to one year in prison. In State v. Castner, the man argues that failure to complete treatment is a “technical violation” of community control, and the maximum time a person convicted of a fifth-degree felony can be sentenced to prison for a technical violation is 90 days.

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