Court of Appeals of Ohio, Fifth District, Guernsey
TIMOTHY D. GERRITY Plaintiff-Appellant
JOHN E. CHERVENAK, TRUSTEE OF THE CHERVENAK FAMILY TRUST, ET AL. Defendant-Appellee
from the Court of Common Pleas, Case No. 17-CV-402
Plaintiff-Appellant JAMES F. MATHEWS, JOHN C. FINNUCAN.
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.
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.
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
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
6} Appellant filed an appeal and this matter is now before
this court for consideration. Assignments of error are as
7} "THE TRIAL COURT ERRED WHEN IT GRANTED THE
APPELLEE'S MOTION FOR SUMMARY JUDGMENT, TO
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 ...