Capps v. Weflen, 20120184.

• Court: United States State Supreme Court of North Dakota
• Citation: 2013 ND 16,826 N.W.2d 605
• Docket Number: No. 20120184.,20120184.
• Parties: Patricia R. CAPPS, f/k/a Patricia Anderson, Terrel A. Anderson, a/k/a Terral Anderson, Gerald C. Wools, Penny Brinks, Michael Lee, Gwen Hassan, Melissa Kellor, and the Estate of Ruth A. Nelson, Deceased, Plaintiffs. Patricia R. Capps, f/k/a Patricia Anderson, Terrel A. Anderson, a/k/a Terral Anderson, Penny Brinks, Michael Lee, Gwen Hassan, and Melissa Kellor, Appellees v. Colleen L. WEFLEN, a/k/a Colleen Weflen, a single woman, Marleen Weflen, f/k/a Marleen W. Tiedt, Sharon Kruse, a/k/a Sharon O. Kruse f/k/a Sharon Weflen, a married woman dealing in her sole and separate property, Catherine Harris f/k/a Catherine Gunderson, a single woman, Norris Weflen, a/k/a Norris L. Weflen, a single man, Windsor Bakken, LLC, a Delaware Limited Liability Company, Gulfport Energy Corporation, and EOG Resources, Inc., Defendants and Appellants.
• Decision Date: 29 January 2013

826 N.W.2d 605
2013 ND 16

Patricia R. CAPPS, f/k/a Patricia Anderson, Terrel A. Anderson, a/k/a Terral Anderson, Gerald C. Wools, Penny Brinks, Michael Lee, Gwen Hassan, Melissa Kellor, and the Estate of Ruth A. Nelson, Deceased, Plaintiffs.
Patricia R. Capps, f/k/a Patricia Anderson, Terrel A. Anderson, a/k/a Terral Anderson, Penny Brinks, Michael Lee, Gwen Hassan, and Melissa Kellor, Appellees
v.
Colleen L. WEFLEN, a/k/a Colleen Weflen, a single woman, Marleen Weflen, f/k/a Marleen W. Tiedt, Sharon Kruse, a/k/a Sharon O. Kruse f/k/a Sharon Weflen, a married woman dealing in her sole and separate property, Catherine Harris f/k/a Catherine Gunderson, a single woman, Norris Weflen, a/k/a Norris L. Weflen, a single man, Windsor Bakken, LLC, a Delaware Limited Liability Company, Gulfport Energy Corporation, and EOG Resources, Inc., Defendants and Appellants.

No. 20120184.

Supreme Court of North Dakota.

Jan. 29, 2013.

[826 N.W.2d 606]

Zachary Evan Pelham (argued) and Patrick W. Durick (on brief), Bismarck, ND, for appellees Patricia Capps and Terrel Anderson.

David Justin Smith (argued) and Sheldon A. Smith (on brief), Bismarck, ND, for appellees Penny Brink, Gwen Hassan, Melissa Kellor, Michael Lee, and the Estate of Ruth A. Nelson.

Richard P. Olson (argued), Wanda L. Fischer (on brief) and Andrew Timothy Forward (on brief), Minot, ND, for appellants Catherine Harris f/k/a Cathy Gunderson, Sharon Kruse, Colleen Weflen, Marlene Weflen, and Norris Weflen.

Monte L. Rogneby (argued), Bismarck, ND, and James Lee Mowry (on brief), Stephen Thomas Throne (on brief), and Jacob T. Haseman (on brief) (not licensed

[826 N.W.2d 607]

in ND), Throne Law Office, P.C., Sheridan, WY, for appellants Gulfport Energy Corporation and Windsor Bakken, LLC.

Amy Lynn De Kok (argued), Lawrence Bender (on brief), and Jillian Rene Rupnow (on brief), Bismarck, ND, for appellant EOG Resources Inc.

Matthew Arnold Sagsveen, Assistant Attorney General, Office of Attorney General, Bismarck, ND, for amicus curiae.

CROTHERS, Justice.

[¶ 1] Colleen Weflen, Marleen Weflen, Sharon Kruse, Catherine Harris, Norris Weflen, Windsor Bakken, LLC, Gulfport Energy Corp. and EOG Resources, Inc., appeal a district court judgment vacating a previous order granting Weflens' motion for summary judgment, granting Capps' motion for summary judgment and finding Weflens had no claim to a one-half mineral interest reserved by Ruth Nelson in 1975. We dismiss Weflens' appeal, concluding the district court abused its discretion in directing entry of a final judgment under N.D.R.Civ.P. 54(b).

I

[¶ 2] In 1975, Ruth Nelson conveyed real property in Mountrail County, North Dakota, to Olav and Rose Weflen. Nelson reserved to herself one-half of the minerals in the property. In 1979, Nelson executed a mineral deed conveying her mineral interest to Patricia Capps and Terrel Anderson (“Capps”). Nelson's deed was not recorded until 2009. Colleen Weflen, Marleen Weflen, Sharon Kruse, Catherine Harris and Norris Weflen (“Weflens”) are the current surface owners of the real property.

[¶ 3] In December 2005 and January 2006, the Weflens published a Notice of Lapse of Mineral Interest in the Mountrail County Promoter for three consecutive weeks. On January 13, 2006, the notice of lapse was mailed by certified mail, return receipt requested, with restricted delivery to the two last known addresses of Nelson. The addresses were obtained from the 1975 warranty deed from Nelson to Olav and Rose Weflen and from an oil and gas lease dated January 12, 1973. The two notices sent by mail were returned undelivered to the Weflens. Nelson died in 1983. No Statement of Claim of Mineral Interest was filed by or on behalf of Nelson within sixty days after the first publication of the notice of lapse. Capps filed a statement of claim on October 30, 2008. Capps brought suit to quiet title in the mineral interest on December 18, 2009.

[¶ 4] The district court granted Weflens' motion for summary judgment, quieting title of the disputed minerals in the Weflens. Subsequently, Gerald Wools, Penny Brink, Michael Lee, Melissa Kellor and Gwen Hassan (“Hassans”) were joined as plaintiffs and then designated as defendants. Hassans claimed an interest to the minerals as heirs of Nelson. Weflens moved for summary judgment against Hassans. Capps requested the district court deny the motion and reconsider its prior order quieting title in Weflens. Upon reconsideration, the district court vacated its prior order granting Weflens' motion for summary judgment, granted Capps' motion for reconsideration and found as a matter of law Weflens had no claim to the one-half mineral interest. The district court entered a final judgment adjudicating fewer than all of the claims of the parties pursuant to N.D.R.Civ.P. 54(b), concluding, “Because the ancillary claims in this case depend upon final resolution of the dormant minerals dispute, the Court agrees there is no just reason to delay entry of judgment on the main claim.”

[¶ 5] The following claims remain unadjudicated before the district court: (1)

[826 N.W.2d 608]

Capps' claim against Hassans and Hassans' counterclaim against Capps disputing ownership of the one-half mineral interest reserved by Nelson, (2) Capps' claim against Whiting Oil and Gas Corp. and Whiting's counterclaim and crossclaim against Capps, Windsor Bakken, LLC and Gulfport Energy Co. disputing ownership of a 25 percent interest in a...