Wright v. Viele

• Decision Date: 04 September 2013
• Docket Number: No. CV–13–24.,CV–13–24.
• Citation: 2013 Ark. App. 471,429 S.W.3d 314
• Parties: Delane WRIGHT and Linda Wright, Appellants v. Nancy E. VIELE, et al., Appellees.
• Court: Arkansas Court of Appeals

2013 Ark. App. 471

429 S.W.3d 314

Delane WRIGHT and Linda Wright, Appellants

v.Nancy E. VIELE, et al., Appellees.

No. CV–13–24.

Court of Appeals of Arkansas.

Sept. 4, 2013.

Law Office of Kent Tester, P.A., Clinton, by: Kent Tester, for appellants.

Graddy & Adkisson, LLP, Conway, by: Larry E. Graddy; and Halstead Law Firm, by: Kelly Halstead, for appellees.

LARRY D. VAUGHT, Judge.

This appeal concerns the validity of a 1991 decree that quieted title to certain mineral interests in appellants Delane and Linda Wright. ¹ The Van Buren County Circuit Court concluded that the 1991 decree was void because not all of the parties claiming an interest were made parties or properly served by publication in the 1991 case. Based on that conclusion, the circuit court denied the Wrights' motion for summary judgment and granted summary judgment quieting title to the mineral interests in appellees. ² The Wrights appeal, contending that the prior decree was valid. We affirm.

Background

The parties trace their titles back to O.D. Gunn. On April 18, 1929, Gunn and his wife, Beatrice, conveyed a one-half interest in the minerals to Robert E. Garrett.The conveyance to Garrett also included a reference to an “E. Graves” as a grantee. There is a separate conveyance of a one-half interest in the minerals to E. Graves under the same date. At the time of these conveyances, Gunn was not the record owner of the property. By quitclaim deed dated May 14, 1929, W.W. Phillips and M.M. Phillips conveyed the properly to Gunn. The deed from the Phillipses to Gunn was recorded on May 29, 1929.

In 1943, O.D. Gunn's heirs conveyed the properly to the Wrights' predecessors in title by warranty deed. The Wrights obtained the properly in 1975.³

On August 6, 1990, the Wrights filed a quiet-title action in the Van Buren County Chancery Court. The case was assigned docket number E–90–198. The caption of the complaint listed the property as a defendant. Other defendants named in the caption were Robert E. Garrett; E. Crows; Jo P. Cappeau, Jr.; John E. Emerson; John W. Cappeau; Colonial Royalties Co.; Investors Royalty Co., Inc.; L.O. McMillan; O.W. Killam; W.O. Dunaway; Verelle Dipert; Dan Dipert; Billie Jean Brown; Charles Hewitt; Griffin Moore; E.F. Evers; General Crude Oil Co.; W.A. Brown; Brown Foundation, Inc.; Stephanie H. Darnell; Timothy Hewett; G.C.O. Minerals Co.; and Mobil Oil Exploration & Producing Southeast, Inc.

The quiet-title complaint asserted that the Wrights and their predecessors in title had “adversely possessed” the property and paid the property taxes on the property for more than thirty years. The Wrights alleged that the purported conveyance of one-half of the mineral interest by O.D. and Beatrice Gunn in 1929 was invalid because the Gunns were not the record owners of the property at the time of that conveyance; that the grant was invalid on its face in that there were inconsistent grantees listed; and that the legal description was invalid on its face. The allegation concerning the inconsistent grantees was due to the fact that Robert E. Garrett is listed as a grantee in two places and E. Graves was listed as grantee in a third place. The complaint further alleged that the Van Buren County Assessor improperly assessed the mineral interest separately from the surface interest because there had been no prior severance of the two interests. According to the complaint, this resulted in the mineral interest being certified to the state for nonpayment of taxes.

Some of the defendants were served with the summons and complaint by certified mail, and they filed answers. On August 6, 1990, the Wrights' attorney filed an affidavit for a warning order stating that a diligent search had been made and that the whereabouts of the remaining defendants were unknown.⁴ The affidavit did not detail the efforts made as part of the search. A warning order was issued the same date. Both the affidavit and the warning order listed “E. Crows” as one of the defendants.

A settlement was announced between the defendants who answered and the Wrights. A decree quieting title to both the surface interest and the mineral interest in the Wrights was entered on December4, 1991. The decree recited that the remaining defendants were properly served with process as required by law and were wholly in default.

The present case began when Chase Properties, Inc., Holt Oil and Gas, LLC, and the heirs of Robert Garrett filed suit against the Wrights for declaratory judgment seeking to set aside the 1991 quiet-title decree. These plaintiffs later voluntarily dismissed their case.

Appellees, who trace their interest back to E. Graves, were allowed to intervene and filed a third-party complaint against the Wrights and Chesapeake Energy Corporation. Appellees alleged that in December 1991, the court erroneously quieted title to the oil, gas, and mineral ownership interests in the Wrights. According to appellees, the error occurred because the clerk made a mistake in recording a mineral grant (listing Robert Garrett twice as grantee of the mineral interest) and, therefore, appellees were not given notice of the filing of the complaint that resulted in the December 1991 quiet-title decree. Appellees alleged that the service by warning order in the 1990 case was defective. They also asserted that the Wrights failed to make a diligent inquiry as to the whereabouts of appellees or their predecessors in title. In their prayer for relief, appellees asked that the 1991 decree be declared null and void and that they be awarded damages for slander of title to include costs and attorney's fees. The Wrights and Chesapeake answered the complaint.

On March 2, 2011, appellees filed an amended third-party complaint naming XTO, SEECO, and a number of others as additional defendants, asserting they may claim a mineral interest in the subject property. XTO answered the complaint and pled the affirmative defenses of laches, waiver, estoppel, and limitations, and further pled that it was a bona fide purchaser for value without notice or knowledge of appellees' claims. The Wrights, SEECO, Chesapeake, and some of the other third-party defendants also answered asserting affirmative defenses.

A May 5, 2011 order realigned six of the third-party plaintiffs as third-party defendants. A second amended third-party complaint added these defendants. All of the third-party defendants filed answers except for Marty Griffith, Howland Gilley, William Beaumier, and Sharon Cotton.

On July 15, 2011, appellees filed a motion for summary judgment. The motion asserted that the Wrights' 1990 petition failed to state a cause of action and that there was no proper service on appellees or their predecessors in title in the 1990 case. The motion and brief also contended that the Wrights' claim to having adversely possessed the mineral interest failed because they admitted in the 1990 case that they did not actually drill or mine for minerals. Appellees amended their summary judgment motion to more explicitly assert that the 1991 decree was void. The amended motion also attached a certified copy of the 1990–91 case file as an exhibit.

The Wrights responded and filed a cross-motion for summary judgment. They asserted that the 1991 decree was valid because they had complied with the Rules of Civil Procedure in obtaining constructive service by warning order. The Wrights also argued that the affidavit stating that more than thirty days had elapsed since the first publication of the warning order was not required because the lower court held a hearing prior to granting summary judgment. The Wrights prayed that summary judgment be denied to appellees and that their cross-motion be granted.

The circuit court entered its written order on September 16, 2011, granting the appellees' motion for summary judgment and declaring the 1991 quiet-title decree void as to all parties. The court found that the warning orders in the 1990 case were invalid because they failed to include a legal description of the property and because the Wrights had failed to file an affidavit stating that thirty days had elapsed since the warning order was first published. The court also denied the Wrights' motion for summary judgment, noting that the mineral rights should have never been quieted in the Wrights because “[o]ne can only adversely possess mineral rights by operating a mine.” An amended order was entered September 29, 2011.

The Wrights attempted to appeal. However, we dismissed the appeal for lack of a final order. Wright, supra. Following the dismissal of the appeal, the circuit court entered an order on October 15, 2012, granting summary judgment to the appellees, while denying summary judgment to the Wrights. The order contains a Rule 54(b) certificate. On October 30, 2012, the court also granted appellees' motion and dismissed their slander of title claim without prejudice. The Wrights filed their notice of appeal on November 9, 2012.

Arguments on Appeal

The Wrights argue that the circuit court erred in granting appellees' motion for summary judgment because (1) there was valid service of process in the 1990 case, (2) the original petition contained sufficient facts to support the original decree, and (3) the appellees never asserted a meritorious defense of ownership.

Discussion

Our standard of review depends on the grounds argued by the party that moved to set the decree aside. If the party claims that the judgment is void, then the matter is a question of law, which we review de novo. Nucor Corp. v. Kilman, 358 Ark. 107, 186 S.W.3d 720 (2004). Otherwise, we review under an abuse-of-discretion standard. Id. In the motion, appellees argued that the Wrights failed to obtain proper service in the 1990–91 case. Lack of service makes a default judgment void. Cole v. First Nat'l Bank, 304 Ark. 26, 800 S.W.2d 412 (1990). Therefore, our review of the circuit court's order is de novo.

The dispositive issue is the validity of...