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Gerrity v. Chervenak

Court of Appeals of Ohio, Fifth District, Guernsey

June 28, 2019

TIMOTHY D. GERRITY Plaintiff-Appellant
v.
JOHN E. CHERVENAK, TRUSTEE OF THE CHERVENAK FAMILY TRUST, ET AL. Defendant-Appellee

          Appeal from the Court of Common Pleas, Case No. 17-CV-402

          For Plaintiff-Appellant JAMES F. MATHEWS, JOHN C. FINNUCAN.

          For Defendant-Appellee MICHAEL D. DORTCH, RICHARD PARSONS.

          JUDGES: Hon. W. Scott Gwin, P.J. Hon. Patricia A. Delaney, J. Hon. Earle E. Wise, Jr., J.

          OPINION

          Wise, Earle, J.

         {¶ 1} Plaintiff-Appellant, Timothy D. Gerrity, appeals the August 16, 2018 judgment entry of the Court of Common Pleas of Guernsey County, Ohio, granting summary judgment to Defendant-Appellee, John E. Chervenak, Trustee of the Chervenak Family Trust.

         FACTS AND PROCEDURAL HISTORY

         {¶ 2} This case centers on the rightful owner of mineral rights of real property located in Guernsey County, Ohio. The reservation of mineral rights was originally created in a warranty deed from T.D. Farwell to Robert C. Shaefer, recorded on November 6, 1961. Mr. Shaefer received the surface rights and Mr. Farwell reserved the mineral rights to the subject property. The reserved mineral rights were conveyed by certificate of transfer from Mr. Farwell's estate to his daughter, Jane F. Richards, recorded on October 19, 1965.

         {¶ 3} By warranty deed recorded November 22, 1999, Mr. Schaefer's surface rights were transferred to John and Gloria Chervenak. On June 14, 2012, the Chervenaks recorded an affidavit of abandonment of the subject mineral rights under the Ohio Dormant Mineral Act (hereinafter "ODMA"). On July 9, 2012, the Chervenaks recorded a notice of failure to file which resulted in them becoming the title owners of the mineral rights. Appellee is the successor to the Chervenaks and the current surface owner of the real property. Appellant is the sole descendant and heir of Jane F. Richards, and therefore claims to be the rightful owner of the mineral rights via a probate action in Florida.

         {¶ 4} On August 4, 2017, appellant filed a declaratory judgment and quiet title action against appellee and others not a part of this appeal, seeking a declaration that the affidavit of abandonment is invalid and he is the exclusive owner of the mineral rights. Appellant alleged the Chervenaks' efforts to capture the mineral rights under the ODMA were insufficient because they failed to exercise reasonable diligence to locate him and serve him notice. On September 11, 2017, appellee filed an answer and counterclaim for declaratory judgment and quiet title, seeking to be named the owner of the mineral rights under the ODMA. Appellee alleged the notice and service requirements under the ODMA were met.

         {¶ 5} Each party filed motions for summary judgment. On July 18, 2018, appellant filed a motion to strike portions of appellee's reply brief, claiming the complained of portions eluded to new factual information that was beyond the scope of prior discovery that he relied upon. By entry filed August 12, 2018, the trial court found no genuine issues of material fact to exist and granted summary judgment to appellee. The trial court ordered appellee's counsel to submit a proposed entry. By final judgment entry filed August 16, 2018, the trial court granted appellee's motion, declaring appellee to be the rightful owner of the mineral rights and any claims of appellant were barred under the ODMA.

         {¶ 6} Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:

         I

         {¶ 7} "THE TRIAL COURT ERRED WHEN IT GRANTED THE APPELLEE'S MOTION FOR SUMMARY JUDGMENT, TO APPELLANT'S PREJUDICE."

         II

         {¶ 8} "THE TRIAL COURT ERRED WHEN IT PERMITTED APPELLEE TO RELY UPON EVIDENCE WHICH CONTRADICTED SWORN DISCOVERY RESPONSES RELIED UPON BY APPELLANT, AND WHICH WAS INTRODUCED ONLY THROUGH THE ...


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