Bednarz v. Henderson Family Ents, Ltd.

[Cite as Bednarz v. Henderson Family Ents, Ltd., 2026-Ohio-1297.]



             IN THE COURT OF APPEALS OF OHIO
                            SEVENTH APPELLATE DISTRICT
                                HARRISON COUNTY



                                 MAUREEN BEDNARZ et al.,

                                        Plaintiffs-Appellees,

                                                    v.

                HENDERSON FAMILY ENTERPRISES, LTD., et al,

                                     Defendants-Appellants.



                       OPINION AND JUDGMENT ENTRY
                                        Case No. 25 HA 0002


                                    Civil Appeal from the
                       Court of Common Pleas of Harrison County, Ohio
                                  Case No. CVH 2020 0074

                                        BEFORE:
                   Carol Ann Robb, Mark A. Hanni, Katelyn Dickey, Judges.


                                             JUDGMENT:
                                               Affirmed.



Atty. Jeffrey J. Bruzzese, Bruzzese, Hanlin & Bruzzese, LLC, for Plaintiffs-Appellees and

Atty. Jon A. Troyer, Arnold Gruber, Ltd., for Defendants-Appellants and

Atty. Matthew W. Onest, Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A. for
Defendants/Appellees.

                                         Dated: April 9, 2026
                                                                                      –2–




Robb, J.

       {¶1}   This case concerns the ownership of oil and gas rights underlying 160 acres
in Harrison County, Ohio. Appellants, Henderson Family Farm Enterprises, Ltd. and
Stuart Henderson, Jr. (collectively the Hendersons), appeal three judgments issued July
23, 2025 addressing competing motions for summary judgment. The trial court generally
concluded the Hendersons’ abandonment efforts under Ohio’s Dormant Mineral Act
(DMA) were ineffective.
       {¶2}   The Hendersons also appeal five other judgments:          the May 5, 2025
decision granting Appellees’ motion for a protective order; the July 3, 2024 judgment
granting Appellees leave to supplement their summary judgment motion; the November
14, 2022 decision granting Encino judgment on the pleadings; the November 14, 2022
decision granting Encino summary judgment; and the April 19, 2022 judgment granting
Appellees’ motion to amend their complaint.
       {¶3}   Although the Hendersons appealed from eight judgments, the assignments
of error properly before us and considered herein arise from two of the three decisions
issued July 23, 2025 granting summary judgment. The Hendersons argue they properly
abandoned the once severed mineral interests and title to the same should be quieted in
their favor. The Hendersons contend they used reasonable diligence in their search for
the mineral rights holders; certain parties lacked standing to challenge the abandonment;
the trial court erred in granting summary judgment against a non-existent party and a
deceased party; and the court erred by granting summary judgment in favor of Means
and Doxzen since they did not assert affirmative claims for relief.
       {¶4}   For the following reasons, we affirm the trial court’s decisions granting
summary judgment in favor of plaintiffs and the Means and Doxzen defendants on count
one of the second amended complaint.
                                     Statement of the Case
       {¶5}   Appellees are comprised of the heirs and assignees of John W. Means.
The initial complaint for declaratory judgment and other claims for relief was filed by ten
named plaintiffs on November 20, 2020 against defendants, Henderson Family



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Enterprises, Ltd. Stuart Henderson, Jr., and several Encino defendants, i.e., Encino
Acquisitions Partners, LLC, Encino Energy, LLC, EAP Ohio, LLC.           Attached to the
complaint are multiple documents, including Stuart J. Henderson, Jr.’s affidavit of
abandonment and corrected affidavit of abandonment concerning two parcels located in
Harrison County.
      {¶6}   Initial discovery was conducted. The Hendersons moved for a protective
order and sanctions, contending Stuart Henderson was improperly subpoenaed to testify
when he was a named defendant. (August 16, 2021 Motion for Protective Order.) The
Hendersons also moved to compel certain responses from Appellees and sought
sanctions for Appellees’ failure to comply with the discovery rules. (December 6, 2021
Motion to Compel.)
      {¶7}   Thereafter, the parties came to an agreement on the outstanding discovery
issues. The court found sanctions were inappropriate as no prejudice occurred. Stuart
Henderson, Jr. withdrew his motion for a protective order and request for sanctions,
noting the parties reached an agreement regarding his deposition and testimony. (August
25, 2021 Notice.) That same date, the trial court issued a judgment regarding an August
17, 2021 phone conference. It states the motion for sanctions and request for Stuart’s
deposition testimony were withdrawn and Stuart would not testify “in any manner in this
case.” It also states the recorded affidavit of abandonment “recorded years ago in the
record chain of title” was not included in or encompassed by this stipulation. (August 25,
2021 Judgment.)
      {¶8}   Appellees filed their second amended complaint February 28, 2022 against
Henderson Family Enterprises, Ltd. Stuart Henderson, Jr., individually and as trustee of
the Henderson Family Revocable Trust and several Encino defendants, Encino
Acquisitions Partners, LLC, Encino Energy, LLC, EAP Ohio, LLC.
      {¶9}   The first nine plaintiffs are individuals claiming to be owners and successors
in interest to 160 acres of minerals underlying property located in Harrison County, Ohio.
Wolf Run II, LLC is a plaintiff who claims to own a leasehold interest in these minerals.
Wolf Run likewise claims to be a fee title owner and successor in interest of the minerals
underlying 160 acres obtained via oil and gas deeds, attached to the complaint as Exhibit
B. (Second Amended Complaint.)



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       {¶10} The second amended complaint likewise identified more than 50 additional
defendants as having a possible interest in the property subject to the lawsuit to allow
them to raise potential claims they may have to the property. John F. Means and Patricia
Doxzen were named as defendants in this manner. (Second Amended Complaint &
March 13, 2022 Request for Service.)
       {¶11} The complaint alleges Stuart Henderson, Jr., individually and as the trustee
of the Henderson Revocable Trust, wrongfully claims ownership of the mineral interests
via affidavits of abandonment filed in 2011 and 2012. The complaint contends Stuart
Henderson Jr. and Thelma Jean Henderson acquired the surface estate via warranty
deed dated December 19, 2000. They then placed their property in the Henderson Family
Revocable Trust in December of 2003. The complaint alleges the Trust filed affidavits of
abandonment in 2011 and 2012, but the same are ineffective based on their failure to
comply with DMA. (Second Amended Complaint.)
       {¶12} Appellees assert claims for declaratory judgment and quiet title, trespass,
ejectment, and forcible entry and detainer. For relief, Appellees asked the trial court to
declare the Hendersons failed to comply with the DMA and thus did not acquire the
minerals underlying the subject properties via abandonment. Appellees likewise sought
determinations that the Hendersons’ leases regarding the mineral rights are void and they
owe plaintiffs damages in excess of $25,000. Among other things, Appellees sought
punitive damages, a decree of ejectment, and an order restoring the property to
Appellees. They likewise sought an award of attorney’s fees, expenses, and court costs.
(Second Amended Complaint.)
       {¶13} John F. Means and Patricia Doxzen filed their answer to the second
amended complaint and admitted they own a portion of the subject mineral rights. They
also asked the trial court to determine via declaratory judgment that they own a portion of
the mineral rights at issue and for an award of attorney’s fees and costs. (May 13, 2022
Means & Doxzen Answer.)
       {¶14} The Hendersons filed their answer to the second amended complaint and
cross-claim against the three Encino defendants. The Hendersons pointed out the entity
is incorrectly named in the complaint and the name of the entity is Henderson Family
Farm Enterprises, Ltd. They asked the trial court to determine via declaratory judgment



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that the mineral interests had been properly abandoned and reunited with the surface
estate. For their first affirmative claim, the Hendersons allege Encino violated its joint
defense agreement with them by cooperating and working with the plaintiffs.             The
Hendersons also contend Encino breached the parties’ oil and gas lease by discontinuing
the payments of royalties owed under the agreement. (March 23, 2022 Hendersons’
Answer & Cross-Claim.)
       {¶15} The Encino defendants filed their answer to the cross-claim and cross-
claimed against the Hendersons. Encino alleged if it is determined that the Hendersons
are not the owners of the mineral interests, the Hendersons will be in violation of the
warranty of title provision in their lease agreement. (April 21, 2022 Encino’s Answer &
Cross-Claim.)
       {¶16} The Hendersons filed a notice of suggestion of death of Stuart Henderson,
Jr. stating he passed away April 3, 2022. (April 27, 2022 Notice.)
       {¶17} The trial court issued a scheduling order and set a discovery deadline of
March 1, 2024. The court also set a dispositive motion deadline of April 26, 2024. It
ordered all depositions intended for trial to be submitted to the court 14 days before trial,
which was set for September 25, 2024. (Nov. 28, 2023 Judgment.)
       {¶18} Encino moved to enforce a settlement agreement with Appellees under
seal. Appellees opposed the motion to enforce, contending the parties never reached an
agreement. The court held a hearing on the matter, and denied the motion to enforce. It
found no enforceable agreement. (Oct. 12, 2023 Judgment.)
                                           Chain of Title
       {¶19} John M. McLandsborough acquired approximately 165 acres located in
Harrison County, Ohio via two deeds dated September 1864 and September 1869.
Several conveyances later, John W. Means acquired the real property via three
transactions. He acquired 100 acres via warranty deed dated September 13, 1916; five
acres via warranty deed dated October 14, 1916; and 60 acres via warranty deed
recorded April 2, 1924.
       {¶20} John W. Means subsequently conveyed 160 acres to B.F. Brown via
warranty deed recorded April 15, 1943. Means reserved the mineral interests in this




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conveyance. It states Means was: “Saving and excepting out of the grant hereby made
all mines and minerals under the said premises hereby conveyed, including oil and gas.”
       {¶21} The mineral rights were later conveyed via a certificate for transfer of real
estate recorded August 27, 1953. This document states Means died testate and his
estate was being administered in Stark County, Ohio by Francis M. Means, the
administrator of his estate.    The certificate states Means’ eight children were each
inheriting 1/8 of the mineral rights underlying the real property. It lists each heir’s name,
age, address, and relationship to the decedent. The addresses for the eight heirs reflect
that four resided in Canton, Ohio; one had a Columbus, Ohio address; one had an Akron,
Ohio address, one lived in New Mexico; and one lived in California. (August 27, 1953
Certificate of Transfer.)
       {¶22} One of John W. Means’ eight heirs, Francis M. Means, died testate and a
certificate of transfer of real estate was recorded in November of 1963 showing Francis
conveyed 100% of his 1/8 mineral rights interest to his wife, Arline M. Means. This
certificate lists Arline’s address in Canton, Ohio and shows it was issued by the Stark
County Probate Court.
       {¶23} The next certificate of transfer of record is dated November 12, 1976. It
memorializes the transfer of the surface estate on the passing of Alva Ashcraft to Freda
Ashcroft. This record refers to three parcels. The second two parcels are the 160 acres
at issue here. It repeats the mineral right reservation, stating that it was “EXCEPTING
AND RESERVING all mines and minerals under said premises, including oil and gas.”
       {¶24} Stuart Henderson, Jr. and Thelma Jean Henderson acquired the surface
estate as husband and wife via warranty gift deed recorded December 19, 2000. This
deed reflects the conveyance of two parcels totaling 160 acres. The conveyance contains
the mineral right reservation, stating in part:     “EXCEPTING AND RESERVING ‘all
minerals under said premises, including oil and gas.’”
       {¶25} Stuart Henderson, Jr. and Thelma Jean Henderson subsequently conveyed
the same two parcels, consisting of 160 acres, plus an additional parcel, consisting of
three tracts, by warranty deed dated December 23, 2009. The Hendersons conveyed the
three parcels to Stuart Henderson Jr. and Thelma Jean Henderson, as Trustees of the




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Henderson Family Revocable Trust dated December 23, 2003. This deed does not
contain the mineral right reservation.
       {¶26} After the surface estate was conveyed to the trust, the Hendersons
recorded an affidavit of abandonment in February of 2011 and a corrected affidavit of
abandonment in June of 2012. These affidavits of abandonment were attached to the
initial complaint.
       {¶27} Both affidavits of abandonment state the affiant, Stuart Henderson, Jr.
“attempted to serve the eight record title owners of the mineral reservation at their last
known addresses by certified mail. All eight mailing[s] were returned by the United States
Postal Service with the designation addressee unknown.” Both affidavits also state
Henderson “caused a notice of his intent to file this affidavit of abandonment of the mineral
interest reserved by John W. Means to be published in the Harrison News Herald[,]” and
as a result, the mineral interests of Edith E. Kidwell, Margaret F. Farber, John W. Means,
Nonna O. Donald, Mary J. Studer, Mabel I. Foster, Frances Means, and Sarah I. Wallick
are abandoned and vested “in Stuart Henderson, Jr., Trustee of the Henderson Family
Revocable Trust dated December 23, 2003.” (Affidavit of Abandonment & Corrected
Affidavit of Abandonment.)
                                  Motions for Summary Judgment
       {¶28} After the exchange of discovery, the parties filed competing motions for
summary judgment. The Hendersons’ motion for summary judgment urged the court to
grant them summary judgment because neither was properly a party to the proceedings.
The Hendersons also argued the disputed interests were properly abandoned under the
DMA and they were entitled to quiet title to the same.
       {¶29} Certain defendants did not answer and default judgment was granted in
plaintiffs’ favor. Additionally, other defendants were dismissed since Wolf River acquired
their applicable rights to the mineral rights.
       {¶30} Appellees’ motion for summary judgment argued they were entitled to
judgment as a matter of law on count one of their complaint, seeking declaratory judgment
and the right to quiet title in their favor.     They alleged the Hendersons’ attempted
abandonment was deficient since the Hendersons failed to use reasonable diligence to
identify the holders of the mineral rights before resorting to notice by publication. And



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had the Hendersons employed reasonable diligence, Appellees claimed their out-of-
county addresses would have been readily located. (April 26, 2024 Plaintiffs’ MSJ.)
        {¶31} Encino filed a motion for summary judgment against the Hendersons.
Encino asserted it was entitled to judgment as a matter of law on count one of
Hendersons’ cross-claim for breach of their joint defense agreement. Additionally, Encino
moved for judgment on the pleadings on count two of the Hendersons’ cross-claim,
asserting a claim for breach of their lease agreement. (June 24, 2022 Motion.) The
Hendersons opposed both aspects of the motion.
        {¶32} The Hendersons moved for summary judgment. They asserted Stuart was
entitled to judgment as a deceased individual who had not been substituted in the
proceedings during the time proscribed by Civ.R. 25(A)(1). Moreover, the remaining
Hendersons asserted they were entitled to judgment as a matter of law on Appellees’
claim to the minerals. The Hendersons urged the trial court to find their abandonment
undertaking was proper; the Appellees failed to preserve their rights; and there were no
R.C. 5301.56(B)(3) saving events. The Hendersons argued: “Nothing in the record
indicates that Mr. Henderson had any knowledge of any successors or assigns living
anywhere else than where the certified mailings were sent. Nothing in the record indicates
that at that time, any reasonable search of public records would yield additional heirs.”
They attached the affidavit of abandonment and corrected affidavit of abandonment
executed by Stuart Henderson, Jr. in support of their motion. (April 26, 2024 Henderson
MSJ.)
        {¶33} Separately, Encino moved for summary judgment against Appellees.
Encino argued the cause should be dismissed based on Appellees’ failure to name
indispensable parties. Additionally, Encino moved for summary judgment on counts two
(trespass), four (ejectment), and five (forcible entry and detainer) of Appellees’ complaint
because it has leases with the Hendersons and the Means heirs, which authorize Encino
to produce oil and gas from the disputed property regardless of whether the Hendersons’
abandonment was successful. (April 26, 2024 Encino MSJ.)
        {¶34} EAP Ohio separately moved for summary judgment on its cross-claim
against the Hendersons. EAP alleged if the Appellees were successful on their claims
that the Hendersons do not own the oil and gas rights, then EAP is entitled to judgment



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as a matter of law that the Hendersons breached the warranty of title in their oil and gas
lease with EAP. (April 26, 2024 EAP MSJ.)
       {¶35} Defendants Means and Doxzen moved for partial summary judgment in
their favor on counts one and two of Appellees’ second amended complaint. They agreed
with Appellees’ contentions and arguments and alleged they were likewise entitled to
summary judgment. They asserted the Hendersons’ efforts to abandon the property
rights were ineffective because the Hendersons did not employ the necessary reasonable
diligence required before publishing notice under the DMA. And upon employing Ohio
Supreme Court precedent, they urged the court to find their mineral rights still valid and
the abandonment ineffective. (April 26, 2024 Means & Doxzen MSJ.)
                                     The Trial Court Judgments
       {¶36} The trial court issued three judgments July 23, 2025 on the competing
summary judgment motions.
       {¶37} The trial court held in its first July 23, 2025 judgment that the Henderson
affidavit of abandonments were ineffective because they did not satisfy R.C. 5301.56.
The court found the Hendersons failed to establish they used reasonable diligence in their
search for the holders of the mineral interests. The court noted the Hendersons did not
examine the probate records in the counties in which the named holders resided. The
court ordered title to the minerals quieted in favor of the heirs of John Means, the plaintiffs,
and against the Hendersons. The court ordered the Harrison County Recorder’s Office
to cross reference the recorded judgment entry through a marginal notation on the
recorded deed. The court entered judgment in favor of the Appellees on count one of the
complaint, i.e., declaratory judgment and quiet title. The trial court did not address the
remaining claims and found there was no just cause for delay. (July 23, 2025 Judgment.)
       {¶38} Separately, the trial court granted John Means and Patricia Doxzen partial
summary judgment. This judgment was also issued July 23, 2025. The court concluded
it was rendering judgment “in favor of Plaintiffs and Means Parties and against the
Henderson Defendants on Counts One and Two of the Second Amended Complaint.”
The judgment likewise states the affidavit indicates the Hendersons attempted to serve
the eight heirs via certified mail, but “[t]here is no proof of mailing attached to the Affidavit
of Abandonment. The Henderson Defendants have not submitted any evidence outside



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the Affidavit of Abandonment to prove certified mailing occurred.” Further, the affidavit
does not indicate the efforts they employed to search for the holders. The court also
found the defense of laches inapplicable and the mineral rights were not abandoned. The
court found there was no just cause for delay and its judgment is a final appealable order.
       {¶39} The third judgment issued July 23, 2025 found the Hendersons breached
their warranty of title contained in their lease with Chesapeake, which was later conveyed
to EAP Ohio. This decision grants summary judgment in EAP’s favor on the issue of
liability and set a status conference on the issue of damages for that breach. This
judgment does not state it is a final appealable order or there is no just cause for delay.
       {¶40} The remaining four judgments appealed include the following.
       {¶41} The May 3, 2025 judgment granted Appellees’ motion for a protective order.
In this judgment, the court ordered the deposition of Maureen Bednarz not to be taken
because the notice was untimely and “unduly burdensome under the circumstances.”
(May 3, 2025 Judgment.)
       {¶42} The July 3, 2024 judgment granted Appellees leave to supplement their
reply to Encino’s motion for summary judgment. (July 3, 2024 Judgment.)
       {¶43} The November 14, 2022 judgment granted Encino’s motion for partial
judgment on the pleadings. The court concluded count two of Henderson’s cross-claim
lacked merit as a matter of law. This judgment does not state it is a final appealable order
or there is no just cause for delay. (November 14, 2022 Judgment.)
       {¶44} The second judgment issued November 14, 2022 held that count one of
Henderson’s cross-claim against Encino lacked merit.            It concluded the Encino
defendants did not breach or violate their joint defense agreement. This judgment does
not state it is a final appealable order or there is no just cause for delay. (November 14,
2022 Judgment.)
       {¶45} The last judgment appealed was issued April 19, 2022. It overruled the
Hendersons’ motion to strike and granted Appellees’ motion to amend their complaint.
The court found good cause existed to amend the complaint in order to name necessary
parties for a complete resolution of the pending issues. (April 19, 2022 judgment.)




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                                      Appellate Proceedings
       {¶46} The Hendersons raise six assignments of error. Thereafter, this court
granted Encino’s partial motion to dismiss. We found three of the judgments appealed
are not final appealable orders. Thus, we dismissed the appeal in part regarding the trial
court’s July 23, 2025 judgment granting partial summary judgment in favor of Encino on
its breach of warranty cross-claim against the Hendersons and the two judgments
regarding Hendersons’ cross-claim against Encino issued November 14, 2022. We
determined assignment of error number five is not properly before us.
       {¶47} We found the two judgments issued November 14, 2022 relative to the
cross-claims between the Hendersons and Encino defendants and the judgment issued
July 23, 2025 granting Encino summary judgment are not final orders. We determined
the Hendersons’ assigned errors one through four and six are properly before us.
(December 12, 2025 Order.)
       {¶48} The trial court granted the Hendersons’ motion to stay the trial court
proceedings pending the outcome of this appeal. (November 10, 2025 Judgment.)
                            Summary Judgment Standard of Review
       {¶49} We review awards of summary judgment de novo. Grafton v. Ohio Edison
Co., 77 Ohio St.3d 102, 105 (1996). Pursuant to Civil Rule 56(C), summary judgment is
proper if:
              (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; and
              (3) it appears from the evidence that reasonable minds can come to
              but one conclusion, and viewing such evidence most strongly in favor
              of the party against whom the motion for summary judgment is made,
              that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).
       {¶50} The party moving for summary judgment bears the initial burden of
demonstrating the absence of genuine issues of material facts concerning the essential
elements of the non-moving party's case. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996).
The moving party must support the motion by pointing to some evidence in the record of
the type listed in Civil Rule 56(C). Id. at 292-293. If the moving party satisfies its burden,



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the non-moving party has the reciprocal burden to demonstrate that a genuine issue of
fact remains for trial. Id. at 293. The non-moving party may not rest on allegations or
denials in her pleadings, but must point to or submit evidence of the type specified in Civil
Rule 56(C). Id.; Civ.R. 56(E).
       {¶51} “Trial courts should award summary judgment with caution, being careful to
resolve doubts and construe evidence in favor of the nonmoving party.” Welco Industries,
Inc. v. Applied Cos., 67 Ohio St.3d 344, 346 (1993). Doubts are to be resolved in favor
of the non-movant. Leibreich v. A.J. Refrig., Inc., 67 Ohio St.3d 266, 269 (1993). A court
“may not weigh the proof or choose among reasonable inferences.” Dupler v. Mansfield
Journal Co., 64 Ohio St.2d 116, 121 (1980).
                                       Assignments of Error
                      Reasonable Efforts Under Ohio’s Dormant Mineral Act
       {¶52} The Hendersons’ first assigned error contends:
       “The trial court erred in finding that Appellants did not act with reasonable diligence
when conducting the search contemplated by R.C. § 5301.56(e)(i).”
       {¶53} The Hendersons contend their affidavits of abandonment satisfied their
statutory obligations. They allege the affidavits were prepared by counsel and set forth
that the eight record title owners of the mineral rights were sent the same via certified
mail at their last known addresses. Thereafter, when the certified mailers were returned
as undeliverable, notice was served by publication. The Hendersons claim the same
shows they exercised reasonable diligence by serving each at their last known address,
and only thereafter did they proceed with service by publication. They argue they did not
disregard information as to the holders’ last known addresses; instead, they sent the
requisite affidavits to each without success and each was returned and designated as
“addressee unknown.” Thus, the Hendersons claim they satisfied R.C. 5301.56(E) and
summary judgment was warranted in their favor.
       {¶54} Last, they claim Appellees’ argument contending a lack of due diligence is
unreasonable and the fact Stuart Henderson, Jr. is dead leaves them with no way of
establishing their efforts. For the following reasons, we disagree.
       {¶55} As stated, in February of 2011 and June of 2012, Stuart recorded an
affidavit of abandonment and corrected affidavit of abandonment regarding the



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subject property. Each affidavit states Stuart “attempted to serve the eight record
title owners of the mineral reservation at their last known addresses by certified mail.
All eight mailings were returned by the United States Postal Service with the
designation of addressee unknown.”             Nothing in the affidavits or elsewhere
demonstrates to what addresses these mailings were sent.
       {¶56} The Hendersons urged the trial court to find the plaintiffs cannot prove
Stuart did not exercise reasonable diligence in his search for the severed mineral
interest holders. The Hendersons contend the plaintiffs failed to come forward with
sufficient evidence to challenge their summary judgment allegations. They claim
Appellees cannot and did not show the Hendersons’ search satisfied the reasonable
diligence standard and that they could not show what efforts were made because
both Stuart and his attorney were deceased. The Hendersons claim, based on the
lack of evidence, they are entitled to judgment as a matter of law. The Hendersons
contend that unlike Gerrity and Fonzi, below, there is no evidence in the instant case
showing they “knowingly disregarded information” about the last known residences
of the holders of the mineral rights.
       {¶57} Because they claimed to have properly undertaken the steps of
abandonment and acted with reasonable diligence, the Hendersons assert Appellees
were required to file a notice of preservation within 60 days. Since Appellees did not
file a timely claim to preserve, the Hendersons claim the mineral holders’ rights were
effectively abandoned.
       {¶58} The General Assembly enacted the Dormant Mineral Act in 1989 as a
supplement to the Ohio Marketable Title Act to provide a mechanism for reuniting
abandoned severed mineral interests with the surface estate. Dodd v. Croskey, 2015-
Ohio-2362, ¶ 7-8. Courts are to liberally construe the DMA “to effect the legislative
purpose of simplifying and facilitating land title transactions by allowing persons to rely on
a record chain of title.” R.C. 5301.55.
       {¶59} Further, when concluding the DMA does not violate the Retroactivity
Clause, the Supreme Court in Corban v. Chesapeake Exploration., L.L.C., 2016-Ohio-
5796, explained the 2006 version of the DMA was self-executing, meaning a surface
owner is not required to pursue litigation to quiet title to a dormant mineral interest. Unlike



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the 1989 DMA, the 2006 version automatically transfers the interest from the mineral
rights holder to the surface owner by operation of law. Id. at ¶ 31. Corban explained:
               If neither a claim to preserve the interest nor an affidavit proving that
       a saving event occurred within the preceding 20 years is timely recorded,
       then the surface holder may record a notice that the mineral interest has
       been abandoned, and “the mineral interest shall vest in the owner of the
       surface of the lands formerly subject to the interest, and the record of the
       mineral interest shall cease to be notice to the public of the existence of the
       mineral interest or of any rights under it.” R.C. 5301.56(H). This statute
       therefore operates to establish the surface owner’s marketable record title
       in the mineral estate.
Id. at ¶ 30.
       {¶60} The Corban Court also stated: “the legislature [by enacting the DMA] has
merely provided a method for the surface holder to obtain marketable record title to an
abandoned mineral interest without having to resort to litigation to have that interest
declared abandoned.” Id. at ¶ 35. Any alleged deficiencies with the surface owner’s
compliance with the abandonment process, like here, must be challenged in court.
       {¶61} The statutory procedure for abandonment of a mineral right is commenced
by the surface owners of the property providing notice. R.C. 5301.56(E) instructs:
               Before a mineral interest becomes vested under division (B) of this
               section in the owner of the surface of the lands subject to the
               interest, the owner of the surface of the lands subject to the interest
               shall . . . :    (1) 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. . . . The notice shall
               contain all of the information specified in division (F) of this section.
       {¶62} A surface owner's failure to satisfy R.C. 5301.56(E) precludes the
application of the DMA and renders unnecessary any further analysis.               Albanese v.
Batman, 2016-Ohio-5814, ¶ 20.




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          {¶63} Before proceeding with service via publication, a surface owner must
exercise reasonable diligence in identifying the holders of the severed mineral interests.
A surface owner’s failure to exert reasonable diligence in his search is a critical error in
the process that precludes abandonment. Gerrity v. Chervenak, 2020-Ohio-6705, ¶ 41;
Fonzi v. Brown, 2022-Ohio-901, ¶ 21.          And “a holder's failure to file a notice of
preservation or to comply with Ohio property law does not release a surface owner from
his or her obligation to conduct a reasonably diligent search for holders prior to serving
notice of abandonment by publication.” Beckett v. Rosza, 2021-Ohio-4298, ¶ 33 (7th
Dist.).
          {¶64} The surface owner has the burden of proving she used reasonable diligence
in attempting to identify and locate the mineral interest holders before resorting to serving
notice of abandonment by publication. Fonzi at ¶ 23. Generally, a review of public
property and court records in the county where the interest is located is sufficient and
establishes a baseline of reasonable diligence. Id.
          {¶65} Reasonable diligence does not always require the surface owner to search
records outside of the county where the mineral interest is located when the mineral
holder resided in that county and there is no indication she died, moved, or conveyed the
interest to others residing outside the county. Gerrity at ¶ 32, 36.
          {¶66} The Ohio Supreme Court has held a surface owner who fails to exercise
reasonable diligence in their search for holders of the severed mineral interests is not
entitled to abandonment. Fonzi at ¶ 21. The question is whether the surface owners
actually exercised reasonable diligence in their search. If the surface owners did not,
then mineral rights are not abandoned under the DMA. Id. at ¶ 22.
          {¶67} Reasonable due diligence is not susceptible to a bright-line rule or test.
Sharp v. Miller, 2018-Ohio-4740, ¶ 17 (7th Dist.). Internet searches are not required.
Gerrity v. Chervenak, 2020-Ohio-6705, ¶ 30. However, a surface owner is required to
consult the public property records in the county in which the surface property is located,
including the chain of title and probate records. Id. at ¶ 35. This is the starting point for
identifying the mineral interest holders. Information in the public records in the county of
the surface estate may reveal facts that “would require the surface owner, in the exercise
of reasonable diligence, to continue looking elsewhere to identify or locate a holder.” Id.



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Whether further search efforts are required depends on the circumstance of each case.
Id. at ¶ 36.
       {¶68} When a review of the court and property records in the county where the
interest is located indicates holders or holders’ heirs may reside or be located in another
county, reasonable diligence requires that avenue be pursued or investigated to locate
the holders before a surface owner resorts to service by publication. Gerrity at ¶ 36.
       {¶69} In Fonzi v. Brown, the surface owners did not search beyond Monroe
County for the heirs of the mineral rights holders despite the fact that a review of the 1952
deed showed Fonzi lived in Washington County, Pennsylvania at the time she acquired
the interest. Fonzi at ¶ 2. The surface owners published their notice of intent to deem
the interests abandoned in the Monroe County newspaper.
       {¶70} Thereafter the Fonzi heirs filed suit for quiet title, contending the surface
owners failed to employ reasonable diligence in the search to locate and serve the
holders. And because the abandonment process employed by the surface owners was
flawed, Fonzis claimed their severed mineral interests remained viable. The trial court
agreed with the surface owners and found the abandonment was complete.
       {¶71} This court and the Ohio Supreme Court disagreed.               On appeal, we
explained that before serving notice by publication under R.C. 5301.56(E), the surface
owners were required to exercise reasonable due diligence in searching for potential heirs
to the mineral interests. Whether “reasonable due diligence” is satisfied depends on the
facts and circumstances of each case. Fonzi at ¶ 22-23, 31; Gerrity at ¶ 25-26, 34. A
surface owner must search beyond that county’s records when a search uncovers
knowledge that the mineral interest holder did not reside in that county when the
reservation was made. Fonzi at ¶ 26.
       {¶72} In Moore v. SWN Prod. Co., LLC, 2024-Ohio-5517, ¶ 9 (7th Dist.), we
affirmed the trial court’s decision finding abandonment. In Moore, the Zollingers retained
an attorney to conduct the abandonment on their behalf. Their attorney documented his
efforts in an affidavit and confirmed he located the last known address for severed mineral
owners in Maryland. The address was contained in the Monroe County property records.
Counsel sent the certified mail to that last known address before also publishing the notice
of abandonment in the local Monroe County newspaper.



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       {¶73} Upon examining whether reasonable efforts were met, this court held in part
the appellants “failed to show that a search of Maryland records would have revealed
information as to the identity or location of the holders of the Moore Interest.” Id. at 17.
       {¶74} The attorney in Moore did not search the Maryland records before sending
the certified mailer to the last known address, which was undeliverable. The counsel in
Moore sent the mailer to the out-of-state address obtained from the Monroe County
record. The surface owners did not search the Maryland records before resorting to
notice by publication. Id. at 22.
       {¶75} Importantly, there was no evidence demonstrating a search of the Maryland
public records would have produced “a better address [than the one in the severance
deed] for the original holders or their heirs.” Id. at ¶ 32. We emphasized the appellants
did not “identify any information available in Hartford County, Maryland in September
2010 which would have given [appellees] a better address.” Id. at ¶ 35. Thus, there was
nothing in evidence showing the surface owners ignored an address. Id. We agreed with
the trial court and found the abandonment effective.
       {¶76} Unlike Moore, the holders in this case came forward with summary
judgment evidence showing they located the heirs of John W. Means via a public record
search of Stark County, Ohio. The affidavit of Richard R. Bell, attached to Appellees’
summary judgment motion, states in pertinent part:
              14.) Affiant confirms that one simple search made by Wolf Run Land
       2 LLC in the probate records in Stark County, Ohio, for Margaret F. Farber,
       deceased, Wolf Run Land 2 LLC located a probated estate for Margaret F.
       Farber and her husband Samuel H. Farber.
              15.) Affiant confirms that both Margaret F. Farber and Samuel H.
       Farber died testate in 1986 and 1990, respectively.
              16.) Affiant confirms that both Last Will and Testaments of Margaret
       F. Farber and Samuel H. Farber devised all their property, both real and
       personal, to each other and then to their children Richard Harry Farber and
       Isabell Jean Coker, equally.
              17.) Affiant confirms that in both estates there are addresses listed
       for both Richard Harry Farber and Isabell Jean Coker, being 3607 39th St.,



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       SW Canton, OH 44706 & 4844 Sherman Church Ave., SW Canton, OH
       44706, respectively.
              18.) Affiant visited Richard H. Farber on 3/27/2018 at his address,
       being the same address listed in both Margaret and Samuel Farber's
       estates, for him to execute a purchase and sales agreement for his interest
       in and to the mineral rights of the subject property.
              19.) Affiant confirms that Isabell Jean Coker died testate in 2003 and
       her estate was administered in Stark County Probate Case No. 187944.
              20.) Affiant confirms that Isabell Jean Coker was survived by her
       husband, John D. Coker, who was the sole beneficiary under her last will
       and testament.
              21.) Affiant confirms that John D. Coker died intestate on December
       4, 2011, and his estate was administered in Stark County Probate Case No.
       214953.
              22.) Affiant confirms that the only two heirs of Mr. Coker were
       identified in his estate were his daughters Judith Cooke Newell of 319
       Country Estates Dr. Extension, Franklinville, NC 27248 and Penny Coker
       Sears, P.O. Box 234 East Templeton, MA 01438.
              23.) Affiant states that Judith Coker Newell lived at the same address
       as listed in Mr. Coker's estate and when Wolf Run Land LLC made contact
       with her.
              24.) Affiant was able to locate the mineral holders quickly, easily and
       without any financial expense by using the information in the record chain
       of title found in the recordings of the Harrison County Recorder's office by
       searching the probate records in Stark County.
       {¶77} Moreover, the affidavit of Maureen Bednarz, dated July 16, 2024, was
offered in support of Appellees’ summary judgment motion. Bednarz states in her affidavit
that she resides at 2128 40th St NE in Canton, Ohio.           She also avers she is the
granddaughter of John W. Means and daughter of Sarah Wallick. Bednarz confirms that
Sarah Wallick’s Stark County address is listed in the deeds recorded in Harrison County.
Sarah died intestate with three children and a living spouse. Sarah “is found in the indicies



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of the Stark County Recorder’s office.” Sarah’s husband died testate in Stark County,
and his estate filed in that county shows his estate was bequeathed to the couple’s three
children, one of whom is Maureen. Maureen attests that the address listed for her in her
father’s will and filed in that court is the same address where she currently resides.
(Affidavit of Maureen Bednarz.)
       {¶78} In light of these facts in evidence, we find Moore distinguishable. Unlike the
facts in Moore, Appellees came forward with evidence demonstrating that better
addresses were identifiable in the Stark County public records for at least three mineral
right holders. Thus, had the Hendersons searched the public records in Stark County,
Ohio, they should have located the same and could have sent the notice of abandonment
via certified mail there.
       {¶79} The Hendersons assert they should not be required to prove, and cannot
prove, what efforts were undertaken by Stuart and the trust’s attorney since both are now
deceased. They assert the burden is on the holders. We disagree. The Ohio Supreme
Court has held the burden is on the surface owner. Fonzi at ¶ 2.
       {¶80} We agree with the trial court and conclude the Hendersons failed to employ
reasonable diligence in their efforts to locate the interest holders before resorting to notice
by publication. They did not search the Stark County public records despite the fact that
the Harrison County property records showed four of the eight holders resided in Stark
County. Beckett, 2021-Ohio-4298 at ¶ 32 (7th Dist.). Consequently, the Hendersons’
attempt to abandon the severed mineral interests was ineffective.
       {¶81} The Hendersons’ first assignment lacks merit.
                                              Standing
       {¶82} The Hendersons’ second assignment of error asserts:
       “The trial court erred in granting Appellees’ motions for Summary Judgment despite
Appellants having raised the issue of standing.”
       {¶83} Next, the Hendersons allege Wolf Run and other plaintiffs lacked standing
to bring this action because certain plaintiffs acquired their alleged purported interests
after the abandonment was complete and noted on the original warranty deed that
created the mineral interest.




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       {¶84} In support of this argument, the Hendersons direct us to our decision in Ohio
River, below, interpreting and applying R.C. 5301.56(H)(2)(c). The Hendersons contend
anyone acquiring an interest after the abandonment and notice of failure to file was
recorded does not obtain an interest therein and had notice of the abandonment. Thus,
those individuals lack standing to challenge the abandonment.
       {¶85} Standing presents a threshold issue. A party must have a personal stake
in the outcome of the controversy to make a legal claim or seek judicial enforcement of a
duty or right. Moore v. Middletown, 2012-Ohio-3897, ¶ 21. A plaintiff must demonstrate
he suffered an injury caused by the defendant or traceable to the alleged conduct of the
defendant, and the injury should have a legal or equitable remedy. Id. at ¶ 22, citing Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992). Whether established facts confer
standing to assert a claim is a question of law, which we review de novo. Portage Cty.
Bd. of Commrs. v. Akron, 2006-Ohio-954, ¶ 90.
       {¶86} Standing does not turn on the merits of the plaintiffs’ claims but rather on
“whether the plaintiffs have alleged such a personal stake in the outcome of the
controversy that they are entitled to have a court hear their case.” ProgressOhio.org, Inc.
v. JobsOhio, 2014-Ohio-2382, ¶ 7.
       {¶87} A subsequent purchaser of an abandoned mineral right lacks standing to
challenge the abandonment process when the record chain of title shows abandonment
was complete before the transfers of the interests to the purchaser occurred. Ohio River
Resources, LLC v. Westfall, 2025-Ohio-2379, ¶ 66 (7th Dist.). We reached our decision
in Ohio River by applying this court’s decision in Cardinal Minerals, LLC v. Miller, 2024-
Ohio-3121 (7th Dist.) and R.C. 5301.56(H)(2)(c). In that case, we held Cardinal lacked
standing to pursue its claims and explained: “Appellant [Cardinal Minerals, LLC] could
not buy, and the Pfalzgraf Heirs could not sell, an interest that no longer existed in the
public record.” Id. at ¶ 23.
       {¶88} However, since the abandonment in this case was ineffective, based on our
conclusion the Hendersons did not employ reasonable diligence in their search for the
holders before resorting to notice by publication, our precedent in which the abandonment
was proper and automatically effective does not apply. The subsequent acquisition of the
severed interests by Wolf Run and others after the record notice of abandonment are still



Case No. 25 HA 0002
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valid because the abandonment was ineffective here. Thus, Appellees had standing, and
this assigned error lacks merit.
                                     Incorrectly Named Parties
          {¶89} The Hendersons’ third assigned error asserts:
          “The trial court erred in granting summary judgment against a non-existent party
and a deceased party, and erred in denying summary judgment to that same deceased
party.”
          {¶90} This assignment urges us to find the trial court erred by rendering judgment
against a deceased party (Stuart Henderson, Jr.) and against an incorrectly named party
(Henderson Family Farm Enterprises, Ltd.) when they repeatedly pointed out these
issues during the underlying proceedings.
          {¶91} The Hendersons suggest that pursuant to Civ.R.25(A)(1), the action should
have been dismissed. They argue Stuart was the “relevant party involved in the
abandonment process,” and it would be prejudicial and unfair to hold his heirs
responsible for acts or omissions he may have made before his death.
          {¶92} As stated, Appellees’ second amended complaint asserted claims against
and named as defendants, Henderson Family Enterprises, LTD., Stuart Henderson, Jr.,
individually and as the trustee of the Henderson Family Revocable Trust, and the three
Encino defendants. The complaint alleges Stuart Henderson, Jr., individually and as
trustee wrongfully claimed ownership of the mineral interests herein. (Feb. 28, 2022
Second Amended Complaint.)
          {¶93} The Hendersons filed their answer to the second amended complaint and
cross-claimed against the Encino defendants. They asked the trial court to determine via
declaratory judgment that the mineral interests had been properly abandoned and
reunited with the surface estate. In this pleading, the Hendersons emphasized the entity
was incorrectly named in the complaint and the correct name of the entity is Henderson
Family Farm Enterprises, Ltd. The Hendersons acknowledged Stuart Henderson, Jr.,
acting as trustee for the Henderson Family Revocable Trust, executed an oil and gas
lease. A copy of the lease is attached. (March 23, 2022 Answer & Cross-Claim.)
          {¶94} Neither party attached a copy of the trust documents to their respective
pleadings. The Hendersons filed a notice of suggestion of death of Stuart Henderson,



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Jr. on April 27, 2022. Thereafter, no motion to substitute the heirs or descendants of
Stuart Henderson, Jr. was filed by any party.
      {¶95} The Hendersons contend they reasserted the fact that Stuart was
deceased in “virtually every filing with the trial court.” Notwithstanding, no party
moved to amend the complaint or filed a motion to substitute the real party in interest.
      {¶96} The evidence shows Stuart Henderson, Jr. and Thelma Jean
Henderson acquired the surface estate as husband and wife via warranty deed
recorded December 19, 2000. Stuart and Thelma subsequently conveyed the same
to Stuart Henderson, Jr. and Thelma Jean Henderson as trustees of the Henderson
Family Revocable Trust dated December 23, 2003. This warranty deed was recorded
December 23, 2009.
      {¶97} Thereafter, in February of 2011 and June of 2012, Stuart executed and
recorded an affidavit of abandonment and a corrected affidavit of abandonment
regarding the subject property. Both affidavits of abandonment state the mineral interest
reserved by John W. Means were abandoned and had “vested in Stuart Henderson, Jr.,
Trustee of the Henderson Family Revocable Trust dated December 23, 2003.”
(Emphasis added.) (Affidavit of Abandonment & Corrected Affidavit of Abandonment.)
      {¶98} Civ.R.25(A) states:
             (A) Death.
             (1) If a party dies and the claim is not thereby extinguished, the court
             shall, upon motion, order substitution of the proper parties. The
             motion for substitution may be made by any party or by the
             successors or representatives of the deceased party and shall be
             served on the parties as provided in Civ.R. 5 and upon persons not
             parties in the manner provided in Civ.R. 4 through Civ.R. 4.6 for the
             service of summons. Unless the motion for substitution is made not
             later than ninety days after the death is suggested upon the record
             by service of a statement of the fact of the death as provided herein
             for the service of the motion, the action shall be dismissed as to the
             deceased party.




Case No. 25 HA 0002
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              (2) In the event of the death of one or more of the plaintiffs or of one
              or more of the defendants in an action in which the right sought to be
              enforced survives only to the surviving plaintiffs or only against the
              surviving defendants, the action does not abate. The death shall be
              suggested upon the record and the action shall proceed in favor of
              or against the surviving parties.
       {¶99} When a party dies, a court loses personal jurisdiction over that party. Justice
v. LeSueur, 2002-Ohio-6429, ¶ 6 (7th Dist.), citing Lierenz v. Bowen, 1991 WL 38039, *3
(6th Dist. March 22, 1991). Thus, the effect of a suggestion of death is that personal
jurisdiction over that party is temporarily abated, and the court is without authority to take
any action with respect to the party-decedent's interest until a proper substitution of
parties is made, service is obtained, and personal jurisdiction is regained. Id.; Abood v.
Nemer, 128 Ohio App.3d 151, 165 (9th Dist. 1998). Where the decedent’s successor or
personal representative has not been substituted for the party-decedent, the result is a
lawsuit with only one party because, in effect, there is no longer an opposing party over
which the court can continue to retain personal jurisdiction. Id.
       {¶100} However, when there is more than one defendant and one defendant dies,
Civ.R.25(A)(2) dictates the action shall continue against the surviving defendants. The
action does not end. Civ.R.25(A)(2); Hunter v. Rhino Shield, 2024-Ohio-261, ¶ 17 (10th
Dist.). Again, the instant case had multiple defendants, and as such, the action should
not have been dismissed.
       {¶101} Moreover, notwithstanding the fact that no one substituted Stuart’s heirs
as the proper party in his place, the Hendersons fail to mention that Stuart was acting
in a representative capacity when he caused the affidavits of abandonment to be
recorded. It is not evident based on the record whether Stuart was a beneficiary of
the trust. It is evident he was one of two named trustees acting as a fiduciary for the
trust. The affidavits of abandonment both identify him as “trustee” and “owner of the
. . . real property.” Each affidavit of abandonment states the Means’ mineral interest
is “deemed abandoned . . . and vests in Stuart Henderson, Jr., Trustee of the
Henderson Family Revocable Trust dated December 23, 2003.” (March 22, 2011
Affidavit of Abandonment & June 18, 2012 Corrected Affidavit of Abandonment.)



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       {¶102} A trustee named as a party in his or her representative capacity or
functioning in this capacity does not act in their personal capacity. Phillips v. May, 2004-
Ohio-5942, ¶ 39-40 (11th Dist.). A trustee is someone who stands in a fiduciary role in
trust for the benefit of another. Black's Law Dictionary (12th ed. 2024). A trustee acts as
an agent or authorized representative.
       {¶103} “[A] trustee may not be the sole trustee and the sole beneficiary of a trust.
See Hill v. Irons (1953), 160 Ohio St. 21, 27, 113 N.E.2d 243, citing 54 American
Jurisprudence 117, Section 137. This principle is codified in R.C. 5804.02(A)(5).” UAP-
Columbus JV326132 v. Young, 2010-Ohio-485, ¶ 14 (10th Dist.).
       {¶104} Because the surface estate is owned by the trust and the abandonment
was undertaken on behalf of the trust, Stuart’s death and the parties’ subsequent failure
to name the new trustee as a party defendant in this litigation had no substantive effect
on the outcome of the proceedings.
       {¶105} The failure to substitute the successor trustee in Stuart’s place did not
invalidate the trial court’s summary judgment decisions on the propriety of the
abandonment or its decision to issue declaratory judgment and quiet title in Appellees’
favor. Thus, the first aspect of this assigned error lacks merit.
       {¶106} As for the second aspect of this assignment of error, the Hendersons do
not direct us to any law or authority in support of their argument concerning the incorrect
naming of Henderson Family Farm Enterprises, Ltd.
       {¶107} The burden of affirmatively demonstrating error on appeal rests with the
party asserting it. App.R. 9 and 16(A)(7); State ex rel. Fulton v. Halliday, 142 Ohio St.
548 (1944). It is not the function of an appellate court to root out law in support of an
appellant’s otherwise unsupported contention. Matter of E.T., 2023-Ohio-444, ¶ 58 (7th
Dist.); State ex rel. Petro v. Gold, 2006-Ohio-943, ¶ 94 (10th Dist.).
       {¶108} Because the second aspect of this assignment is conclusory and
unsupported, we do not construct the argument for them.             Thus, the Hendersons’
argument that Henderson Family Farm Enterprises, Ltd. is an incorrectly named party is
overruled. State v. Bruce, 2023-Ohio-4719, ¶ 56 (7th Dist.) (disregarding unsupported
and conclusory arguments in appellant's brief).
       {¶109} This assigned error is overruled in its entirety.



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                                 Statute of Limitations & Laches
       {¶110} The Hendersons’ fourth assignment asserts:
       “The trial court erred in granting summary judgment when the asserted claims are
barred by relevant statutory time limits.”
       {¶111} This assigned error is comprised of three arguments. The Hendersons
assert Appellees’ failure to file a claim to preserve their interest and lack of any other
savings events acted as a waiver of their rights in light of the two notices of abandonment
filed of record. The Hendersons also contend the holders’ claims are barred by laches
and a four-year statute of limitations. We disagree with each contention.
       {¶112} First, the Hendersons refer us to Appellees’, Means’ and Doxzen’s failure
to file a claim to preserve their respective rights as waiving their rights to the same. We
disagree.
       {¶113} As set forth previously, before proceeding with service via publication
under the DMA, a surface owner must exercise reasonable diligence in identifying the
holders of the severed mineral interests. Gerrity v. Chervenak, 2020-Ohio-6705, ¶ 41. A
“holder's failure to file a notice of preservation or to comply with Ohio property law does
not release a surface owner from his or her obligation to conduct a reasonably diligent
search for holders prior to serving notice of abandonment by publication.” Beckett v.
Rosza, 2021-Ohio-4298, ¶ 33 (7th Dist.).
       {¶114} A surface owner's failure to satisfy R.C. 5301.56(E) precludes the
application of the DMA and renders unnecessary any further analysis.           Albanese v.
Batman, 2016-Ohio-5814, ¶ 20.        Absent successful abandonment, the mineral right
holders’ ownership remains. Id.
       {¶115} Next, neither the laches nor statute of limitations arguments were raised
in the Hendersons’ April 26, 2024 motion for summary judgment regarding Appellees’
claims. Thus, to the extent the Hendersons claim they are entitled to relief from Appellees’
claims based on these arguments, the same were waived. Senterra Ltd. v. Winland,
2019-Ohio-4387, ¶ 38 (7th Dist.) (failure to raise an argument waives the right to raise the
issue on appeal).
       {¶116} However, the Hendersons did raise these arguments in their June 24,
2024 opposition to the Means and Doxzen motion for partial summary judgment. The



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Hendersons assert Means and Doxzen waited ten years to raise their claims after
abandonment was complete. The Hendersons contend the severed mineral interests
constitute personal property subject to a four-year statute of limitations under R.C.
2305.09. We disagree.
       {¶117} Mineral interests are real property until they are extracted from the land.
Back v. Ohio Fuel Gas Co., 160 Ohio St. 81, 88-89 (1953); Moore Family Tr. v. Jeffers,
2023-Ohio-3653, ¶ 26 (7th Dist.), citing Peppertree Farms, L.L.C. v. Thonen, 167 Ohio
St.3d 52, ¶ 26.
       {¶118} As stated, the issues in this appeal are limited to the trial court’s decision
on count one of Appellees’ complaint. Count one asked the court to render declaratory
judgment and quiet title to the mineral interests in favor of the Means heirs, their
successors, and assigns. The judgments addressed the propriety of the Hendersons’
abandonment efforts. The judgments before us do not award damages and do not
address the claims for slander of title, trespass, or others.
       {¶119} The underlying nature or subject matter of a claim determines the statute
of limitations applicable to a declaratory judgment action. Joseph Bro. Co., LLC v. Dunn
Bros., Ltd., 2019-Ohio-4821, ¶ 41 (6th Dist.). The Sixth District Court of Appeals has held
that declaratory judgment actions for the recovery of real estate are generally subject to
the 21-year limitation period in R.C. 2305.04. Id.
       {¶120} Because the judgments on appeal quieted title to the mineral rights and
determined the viability of the Hendersons’ abandonment efforts, the personal property
statute of limitations is inapplicable. Thus, this argument lacks merit.
       {¶121} As for the Hendersons’ laches argument, the four elements of laches are
“(1) unreasonable delay or lapse of time in asserting a right, (2) absence of an excuse for
the delay, (3) knowledge, actual or constructive, of the injury or wrong, and (4) prejudice
to the other party.” (Citations omitted.) In re Guardianship of Mull, 2015-Ohio-5440, ¶ 68
(7th Dist.).
       {¶122} As stated, Means and Doxzen were not plaintiffs herein and did not
commence the litigation. They did not raise counterclaims or cross-claims. Instead, they
defended the claims against them and asserted their ownership rights to the mineral




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                                                                                      – 27 –


interests in their defense of the claims against them. The trial court determined their
interests were viable and the Hendersons’ abandonment efforts were ineffective.
       {¶123} Thus, to the extent the Hendersons contend their rights are precluded
under the doctrine of laches, we disagree. Since Means and Doxzen did not assert
affirmative claims for relief, the Hendersons’ argument that their claims were untimely and
they lacked a legitimate excuse for the delay in filing their claims, lacks merit.
       {¶124} Additionally, the Hendersons claim prejudice based on the death of Stuart
Henderson and his attorney, who prepared the abandonment documents on his behalf.
To the extent the Hendersons allege prejudice as a result of the lack of Stuart’s testimony,
they stipulated early on in the proceedings he would not testify.
       {¶125} As detailed under the statement of the case, the parties reached an
agreement regarding Stuart’s deposition and testimony. (August 25, 2021 Notice.) The
trial court stated in a judgment that the Hendersons’ motion for sanctions and request for
Stuart’s deposition were withdrawn. The parties agreed Stuart would not testify “in any
manner in this case.” The judgment also states the recorded affidavit of abandonment
“recorded years ago in the record chain of title” was not included in or encompassed by
this stipulation. (August 25, 2021 Judgment.)
       {¶126} Thus, the Hendersons should not be permitted to rely on his lack of
testimony as demonstrating prejudice when Stuart was alive during the proceedings but
they chose not to have him testify before his death. In light of the foregoing, we find the
Hendersons’ fourth assigned error lacks merit in its entirety.
       {¶127} As stated, we decline to consider the Hendersons’ fifth assigned error as
it is not properly before us.
                                   Defendants’ Right to Judgment
       {¶128} The Hendersons’ sixth assigned error contends:
       “The trial court erred in granting summary judgment against Appellants and
in favor of parties that never filed a claim.”
       {¶129} Here, the Hendersons claim the Means and Doxzen defendants did not
file affirmative claims for relief, and as such, the trial court erroneously rendered summary
judgment in their favor. We disagree.




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       {¶130} Appellees added Means and Doxzen as defendants who may have an
interest in the proceedings via the second amended complaint. In their answer, Means
and Doxzen claimed an interest in the mineral interests. Although they did not assert an
affirmative claim for relief via a cross-claim or counterclaim, they asked the court for
declaratory judgment in their favor and for the court to recognize their interests. Means
and Doxzen sought quiet title to the mineral interests and a determination that the
Hendersons’ abandonment efforts were insufficient and ineffective.            (May 13, 2002
Means & Doxzen Answer.)
       {¶131} As stated, the trial court ultimately determined the Hendersons failed to
comply with the mandatory statutory provisions, and as a result, their abandonment
efforts were ineffective. Thus, the court held Appellees’ rights to the mineral interests, as
well as the Means and Doxzen defendants’ rights to the mineral rights, were not
abandoned under the DMA. The trial court recognized this in its judgments granting
summary judgment in favor of Appellees and in favor of Means and Doxzen. (July 23,
2025 Judgments.)
       {¶132} The Declaratory Judgment Act was enacted to provide a remedy where
either none exists because a cause of action has not yet accrued or “the assertion of legal
rights is dependent upon the act of a third party or upon the passage of time. Its basic
purpose . . . is to relieve parties from acting at their own peril in order to establish their
legal rights.” (Citations omitted.) Gray v. Willey Freightways, Inc., 89 Ohio App.3d 355,
362 (6th Dist. 1993). The Act is to be liberally construed. R.C. 2721.13.
       {¶133} When declaratory relief is sought under Chapter 2721 of the Ohio Revised
Code, “all persons who have or claim any interest that would be affected by the
declaration shall be made parties to the action or proceeding.” R.C. 2721.12(A). And
R.C. 2721.03 states in part:
              [A]ny person interested under a deed, will, written contract, or other
       writing constituting a contract or any person whose rights, status, or other
       legal relations are affected by a . . . contract . . . may have determined any
       question of construction or validity arising under the instrument, . . . and
       obtain a declaration of rights, status, or other legal relations under it.




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       {¶134} Thus, regardless of the fact that Means and Doxzen did not assert
affirmative claims for relief in the trial court proceedings, Appellees filed the action and
named them as necessary and interested parties with a potential interest in the subject
matter of the litigation. Pursuant to the provisions in Chapter 2721, the trial court was
authorized to determine their rights to the interest. Accordingly, this assigned error lacks
merit and is overruled.
                                           Conclusion
       {¶135} In light of the foregoing, the Hendersons’ assignments of error lack merit.
The trial court’s two judgments issued July 23, 2025 granting declaratory judgment and
quiet title in favor of the plaintiffs and the Means and Doxzen defendants are affirmed.


Hanni, J., concurs.

Dickey, J., concurs.




Case No. 25 HA 0002
[Cite as Bednarz v. Henderson Family Ents, Ltd., 2026-Ohio-1297.]




        For the reasons stated in the Opinion rendered herein, it is the final judgment and
order of this Court that the, trial court’s two judgments issued July 23, 2025 granting
declaratory judgment and quiet title in favor of the plaintiffs and the Means and Doxzen
defendants are affirmed. Costs to be taxed against the Appellants.
        A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.



                                       NOTICE TO COUNSEL

        This document constitutes a final judgment entry.