Whelan v. New Mexico Western Oil and Gas Company

• Decision Date: 26 August 1955
• Docket Number: No. 5083.,5083.
• Citation: 226 F.2d 156
• Parties: Mark WHELAN, Appellant, v. NEW MEXICO WESTERN OIL and GAS COMPANY, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

226 F.2d 156 (1955)

Mark WHELAN, Appellant, v. NEW MEXICO WESTERN OIL and GAS COMPANY, Appellee.

No. 5083.

United States Court of Appeals Tenth Circuit.

August 26, 1955.

Harry O. Morris and G. W. Hannett, Albuquerque, N. M. (A. T. Hannett and W. S. Lindamood, Albuquerque, N. M., on the brief), for appellant.

Thomas R. Hartnett, III, Dallas, Tex. (Seth & Montgomery, A. K. Montgomery, Santa Fe, N. M., Turner, White, Atwood, McLane & Francis, Dallas, Tex., on the brief), for appellee.

Before BRATTON, HUXMAN and PICKETT, Circuit Judges.

BRATTON, Circuit Judge.

This was an action instituted by New Mexico Western Oil and Gas Company against Mark Whelan to remove cloud from title and to recover damages for slander of title. The complaint was in two counts. It was alleged in the first count that plaintiff owned and possessed the working and other interests in, to, and under oil and gas leases executed by appropriate officers on behalf of the United States and the State of New Mexico covering approximately 23,638.43 acres of described land in San Juan County, New Mexico; that its title to such leasehold estate was derived through and under J. J. Hudson and Slick-Moorman Oil Company; that the defendant filed in the District Court of San Juan County a complaint in an action Numbered 4023, and entitled Mark Whelan v. J. J. Hudson and Slick-Moorman Oil Company; that in such complaint a claim was asserted "to a thirty per cent (30%) overriding royalty or working interest in and to an undivided 640 acres in and under the Oil and Gas Leases covering all of the 23,638.43 acres * * *"; that a lis pendens notice of such suit was filed in the appropriate official records of San Juan County; that the defendant had no right, title, or interest in any of the oil and gas leases covering such lands; that the claim to an overriding royalty or working interest in and to the interest of plaintiff in such oil and gas leases having been spread on the public records constituted a cloud on the title of plaintiff; that such oil and gas leases, together with other lands, made up the so-called Huerfano Unit, in San Juan County; that Stanolind Oil and Gas Company was the unit operator of such leases; and that since the date of the filing of the lis pendens notice, the unit operator had withheld payment of oil and gas runs to plaintiff and its predecessors in title and would not release the funds rightfully belonging to plaintiff and its predecessors in title until judicial disposition had been made of the claim being asserted by the defendant. In the second count of the complaint, it was pleaded in conventional manner that the claim being asserted by the defendant to an overriding royalty or working interest in and to 640 acres of the lands described in the leasehold estate consisting of 23,638.43 acres was false; that the complaint and notice of lis pendens filed in San Juan County were not filed in a bona fide assertion of any supposed right in the defendant but were filed with malice; and that in consequence plaintiff had suffered damages as therein specified. The defendant filed an extended answer and counterclaim. In the answer it was pleaded among other things that the defendant had an interest in the lands and leases described in the complaint, and that such interest had its source in a certain letter written by J. J. Hudson to the defendant and accepted by the defendant in writing. A copy of the letter was attached to the pleading and made a part thereof.

Plaintiff filed a motion for summary judgment upon the first count contained in the complaint on the ground that there was no genuine issue as to any material fact relating to the cause of action pleaded in such count, and that plaintiff was entitled to judgment under such count as a matter of law. The court heard the motion and advised the parties in writing that it was sustained and that summary judgment would be entered. Thereafter, and before entry of the formal judgment, the defendant filed a motion for leave to amend his answer and counterclaim. Plaintiff filed a motion to take a nonsuit on the second count of the complaint, conditioned that summary judgment be entered for plaintiff on the first count of the complaint, and conditioned that judgment be entered dismissing the defendant's counterclaim. Summary judgment was entered denying the motion for leave to amend the answer and counterclaim, removing cloud from plaintiff's title to the leasehold estate as sought in the first count of the complaint, dismissing without prejudice the second count in the complaint, and dismissing the counterclaim. Defendant's seasonably perfected appeal brought the judgment here for review; and for convenience, continued reference will be made to the parties as plaintiff and defendant.

A preliminary question of procedure is presented at the threshold of the case. It is contended that due to a procedural deficiency in connection with the motion for summary judgment, entry of the judgment constituted error. The argument in support of the contention is that the gist of the motion was that the letter written by Hudson to the defendant and accepted by the defendant in writing did not meet the requirements of the statute of frauds; that no certified copy of the letter was attached to the motion; that no affidavit was attached to the motion; that no admissions of the defendant were set forth in the motion; and that therefore the motion violated the mandate of Rule of Civil Procedure 56, 28 U.S.C.A., in respect to the items upon which a motion for summary judgment may be predicated. In presently pertinent part, Rule 56 provides that a party seeking to recover upon a claim may move with or without supporting affidavits for summary judgment in his favor upon all or any part of such claim; that the judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law; that supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein; and that sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached to the motion or served therewith. The purpose of the rule is to make possible the expeditious disposition of cases in which there are no genuine issues of material fact upon which the outcome of the litigation depends. But the procedure is to be invoked with due caution to the end that litigants may be afforded a trial where there exists between them a bona fide dispute of material fact or facts. Where it appears however that there is no genuine issue as to any material fact upon which the outcome of the litigation turns, the case is appropriate for disposition by summary judgment and it becomes the duty of the court to enter such judgment. And in determining whether a motion for summary judgment is well founded, the court may pierce formal allegations of fact in pleadings and determine from the entire case whether there are genuine issues of fact for resolution on a formal trial. Avrick v. Rockmont Envelope Co., 10 Cir., 155 F.2d 568; SMS Manufacturing Co. v. U. S. Mengel Plywoods, 10 Cir., 219 F.2d 606; Brodrick v. Gore, 10 Cir., 224 F.2d 892. It was pleaded in the motion for summary judgment that the instruments of record constituting plaintiff's chain of title listed in Exhibit "A"...