Tucker v. Dominion

• Decision Date: 23 February 2010
• Docket Number: 322.,No. 106,106
• Parties: Don W. TUCKER and Larry B. Johnson, Plaintiffs/Appellants,v.NEW DOMINION, L.L.C., Defendant/Appellee.
• Court: Oklahoma Supreme Court

230 P.3d 882

2010 OK 14

Don W. TUCKER and Larry B. Johnson, Plaintiffs/Appellants,v.NEW DOMINION, L.L.C., Defendant/Appellee.

No. 106,322.

Supreme Court of Oklahoma.

Feb. 23, 2010.

On Writ of Certiorari to the Court of Civil Appeals, Division I

¶ 0 Plaintiffs brought a quiet title suit in which they asked for an accounting against the defendant who had obtained an order from the Oklahoma Corporation Commission pooling the plaintiffs' mineral interest. The plaintiffs alleged that their mineral interest had not been brought within the Commission's jurisdiction because publication notice showed the name of Olinka Hardy instead of the name Olinka Hrdy, the record owner at the time. Both parties moved for summary judgment. The district court rendered judgment in the defendant's favor. The plaintiffs appealed, and the Court of Civil Appeals reversed and remanded the case. The defendant sought review in this Court, and we granted the writ of certiorari.

COURT OF CIVIL APPEALS' OPINION VACATED; DISTRICT COURT'S JUDGMENT AFFIRMED; CAUSE REMANDED.

Charles B. Davis, Norman, Oklahoma, for the appellants.

Fred M. Buxton, Tulsa, Oklahoma, and Elizabeth C. Nichols, Edmond, Oklahoma, for appellee.

TAYLOR, V.C.J.

¶ 1 The question presented is whether, under the circumstances, the misspelling of the name Olinka Hrdy as Olinka Hardy in the publication notices and other documents filed in an Oklahoma Corporation Commission proceeding having as its purpose the pooling of mineral interests renders the Commission's pooling order invalid as to Olinka Hrdy for lack of due process. We answer in the negative.

I. FACTS

¶ 2 Olinka Hrdy was the owner of a fractional mineral estate in property described as the SE/4 of Section 9, T11N, R6E, Pottawatomie County, Oklahoma (subject property). Ms. Hrdy died in 1987. This mineral estate was not included in the final probate order, leaving Ms. Hrdy as the record owner and leaving the probate order unindexed against the subject property in the Pottawatomie County clerk's office.¹

¶ 3 On May 7, 2004, New Dominion, L.L.C. (New Dominion) filed an application with the Oklahoma Corporation Commission (Commission) seeking to pool the mineral interests in the subject property. New Dominion attempted to mail notice to Ms. Hrdy at a post office box in Prague, Oklahoma, but the notice was not deliverable. Thereafter, notice was given by publication. None of the pleadings and notices filed with the Commission nor the publication notices named Olinka Hrdy as having in interest in the property. Rather, they named Olinka Hardy. The Commission issued a pooling order requiring the mineral owners to elect within twenty days to either (1) participate, (2) not participate and receive a 3/16 royalty and $50.00 per acre bonus, or (3) not participate and receive a 1/8 royalty and $60.00 per acre bonus. A mineral owner not making an election was deemed to have chosen option three, 1/8 royalty interest and $60.00 per acre bonus. No election was made on behalf of Olinka Hrdy. New Dominion completed the Noel No. 1-9 on the property.

¶ 4 On March 28, 2007, the district court, sitting in probate, issued an order nunc pro tunc awarding Ms. Hrdy's mineral interest to Larry B. Johnson. However, on March 21, 2007, Johnson had entered into an oil and gas lease with Don W. Tucker for 3/16 royalty. The lease was filed of record on March 23, 2007. On April 24, 2007, Tucker wrote New Dominion seeking to participate in the Noel No. 1-9, asserting that Ms. Hrdy's interested had not been pooled.

¶ 5 When New Dominion refused to acknowledge that Tucker was entitled to participate in the Noel No. 1-9, the plaintiffs filed a quiet title suit in the District Court of Pottawatomie County and asked for an accounting and recovery of all unpaid royalties with interest as a participant in the well. New Dominion filed a motion to dismiss, arguing that the suit was an improper collateral attack on the Commission's pooling order. The district court granted the motion to dismiss. The plaintiffs appealed (Appeal No. 105,052), and the Court of Civil Appeals treated the motion to dismiss as a motion for summary judgment and reversed the district court's order. Tucker v. New Dominion, L.L.C., 2008 OK CIV APP 42, 182 P.3d 169. Finding that the suit was one to resolve a dispute over private rights rather than public rights, the Court of Civil Appeals determined that the suit was properly filed in the district court. Id. at ¶¶ 7-8, 182 P.3d at 171. New Dominion filed a petition for writ of certiorari, which this Court denied.

¶ 6 Upon remand to the district court, New Dominion filed an answer and counterclaim in which New Dominion asked the court to “declare the rights of the parties to receive royalties in the specific formations pooled” by the Commission.² Thereafter, New Dominion filed a motion for summary judgment, arguing that Olinka Hrdy's mineral interest had been force pooled by the Commission's order, asking for a declaration that the publication notice to “Olinka Hardy” was sufficient, and asking the district court for an order that the plaintiffs were subject to the pooling order. New Dominion urged that publication notice naming Olinka Hardy was effective as notice to Olinka Hrdy under the doctrine of idem sonans, literally “having the same sound.” New Dominion continued that, because Olinka Hrdy received sufficient notice and no election was received on her behalf, she or her successors in interest were deemed to have opted for the bonus and 1/8 royalty interest under the terms of the pooling order.

¶ 7 The plaintiffs responded to New Dominion's motion for summary judgment and filed their own motion for summary judgment. The plaintiffs took the position that the doctrine of idem sonans was not applicable because (1) no one appeared on behalf of Olinka Hrdy before the Commission and no one was actually served on her behalf and (2) New Dominion knew the correct spelling of Hrdy, failed to use the correct spelling, and did not correct the error. The plaintiffs urged that Olinka Hrdy did not have sufficient notice, the Commission did not have jurisdiction to pool her interests, and, thus, her interest, now the plaintiffs', was not subject to the Commission's pooling order.

¶ 8 The district court granted summary judgment in New Dominion's favor and found that New Dominion had properly served Olinka Hrdy's interest by publication under the doctrine of idem sonans. The district court also found that “Johnson, as heir of Olinka Hrdy's interest, and Tucker, as Johnson's lessee, are subject” to the Commission's pooling order. The district court concluded that New Dominion was entitled to judgment on the plaintiffs' claim for quiet title to the extent that the plaintiffs asserted rights inconsistent with the pooling order.

¶ 9 The plaintiffs appealed the district court's order, and this order is the one presently before this Court. However, the appeal was assigned to the Court of Civil Appeals for disposition. The Court of Civil Appeals found that New Dominion did not meet its burden of submitting evidentiary material to establish its assertion that the pronunciation of “Hrdy” and “Hardy” sound substantially the same and to establish other factors supporting the application of the doctrine of idem sonans. The Court of Civil Appeals reversed the order granting summary judgment and remanded the case for further proceedings.

¶ 10 New Dominion filed its petition for writ of certiorari. In its petition, New Dominion argued that the facts at issue relating to the factors of idem sonans are so obvious and self-evident that this Court should take judicial notice of them. This Court granted certiorari.

II. SUMMARY JUDGMENT AND STANDARD OF REVIEW

¶ 11 Under Rule 13(a) of the Rules of District Courts, 12 O.S.2001, ch. 2, app., a party may move for summary judgment or summary disposition of any issue when the evidentiary materials filed in support of the motion show that there is no genuine issue of any material fact. The moving party must support the motion by attaching and referencing evidentiary materials supporting the party's statement of undisputed facts. Id. The opposing party must state the material facts which the party contends are disputed and attach supporting evidentiary materials. Id. The court shall grant judgment to one of the parties if it appears that there is no substantial controversy as to any material fact and that one party is entitled to judgment as a matter of law. Id. at Rule 13(e).

¶ 12 Summary judgment settles only questions of law. Rox Petrol., L.L.C. v. New Dominion, L.L.C., 2008 OK 13, ¶ 2, 184 P.3d 502, 504. We review rulings on issues of law by a de novo standard pursuant to the plenary power of the appellate courts without deference to the trial court. Glasco v. State ex rel. Okla. Dept. of Corrections, 2008 OK 65, ¶ 8, 188 P.3d 177, 181. Thus, summary judgments are reviewed de novo.Id.

III. ANALYSIS

¶ 13 The Commission when issuing pooling orders is functioning in an adjudicatory capacity. See Harry R. Carlile Trust v. Cotton Petroleum Corp., 1986 OK 16, ¶ 8, 732 P.2d 438, 441-442. The Commission's adjudicatory function is comparable to a court's. Id. ¶ 9, 732 P.2d at 442. Constitutional due process requirements governing notice apply to Commission adjudicatory proceedings in the same force and quality as to judicial proceedings. Id.

¶ 14 Before a person's interest can be adversely affected by a judicial process or, as in this case, a Commission adjudicatory proceeding, the Fourteenth Amendment to the United States Constitution and Article 2, section 7 of the Oklahoma Constitution³ require notice and an opportunity to be heard. PFL Life Ins. Co. v. Franklin, 1998 OK 32, ¶ 9, 958 P.2d 156, 162. Notice is jurisdictional and an indispensable element of due process Shamblin v. Beasley, 1998 OK 88, ¶ 12, 967 P.2d 1200, 1209, and is the mechanism for affording the opportunity to be heard. Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct....