Phifer v. Ouellette

2022 Ark. App. 78, 641 S.W.3d 48

• Court: Court of Appeals of Arkansas
• Decided: February 16, 2022
• Status: Published

Opinion

Cite as 2022 Ark. App. 78 ARKANSAS COURT OF APPEALS DIVISION II No. CV-20-733

Opinion Delivered February 16, 2022

LARRY PHIFER APPEAL FROM THE WHITE APPELLANT COUNTY CIRCUIT COURT [NO. 73CV-13-156] V. HONORABLE CRAIG HANNAH, JANET OUELLETTE, PERSONAL JUDGE REPRESENTATIVE OF THE ESTATE OF RUTH COWIN; RICHARD COWIN; MARGOT COWIN; ANADARKO E&P COMPANY, L.P., A DELAWARE PARTNERSHIP; ANADARKO LAND CORP., A NEBRASKA CORPORATION; CHESAPEAKE EXPLORATION, LLC, AN OKLAHOMA LIMITED LIABILITY COMPANY; SOUTHWESTERN ENERGY COMPANY, A DELAWARE CORPORATION; AND BHP BILLITON PETROLEUM (FAYETTEVILLE), LLC, A DELAWARE LIMITED LIABILITY COMPANY APPELLEES AFFIRMED AS MODIFIED

MIKE MURPHY, Judge

This case is a dispute over percentage ownership in minerals interests in a 190-acre

tract of land in White County, Arkansas. The circuit court quieted title in the minerals with

a 25 percent interest to the appellant, Larry Phifer, and 75 percent interest to Margot and

Richard Cowin, the appellees. Phifer appeals, contending that the circuit court erred in its

calculation. He argues that the mineral interests are owned 50/50. He also argues that the court impermissibly entered one of the orders in the case nunc pro tunc. We affirm as

modified.

In April 2013, Phifer filed suit against several parties seeking to determine the

respective ownership interests of mineral rights associated with a tract of land containing

approximately 190 acres. Phifer contended he owned a 50 percent mineral interest, and the

appellees, Margot and Richard Cowin, asserted they owned a 75 percent mineral interest.

Phifer later amended the complaint to add an action for quiet title and a claim against his

predecessor in title, Ruth Cowin, for breach of the covenant of warranty in the event the

action was resolved against him. Ruth is deceased, and Janet Oullette was the personal

representative of Ruth’s estate. The Cowins counterclaimed for declaratory judgment.

Several other defendants interested in the litigation by virtue of leasing mineral rights also

filed counterclaims and cross-claims in the case seeking relief based on the ultimate outcome

of the quiet-title action between Phifer and the Cowins.

After a bench trial, the circuit court quieted titled and found that the Cowins owned

75 percent of the mineral interests and Phifer owned 25 percent. Phifer appealed, but in

appealing realized that there were finality issues that required addressing—several claims and

cross-claims were still outstanding. We dismissed his appeal on his motion. On December

12, 2018, the circuit court entered an order dismissing the claims of the separate defendants.

Phifer again appealed. After filing that notice of appeal, however, Phifer noticed that there

was still an outstanding, unresolved claim against a party not a part of the appeal (specifically,

his claim against Ruth Cowin’s estate) and moved to dismiss the appeal in order to dispose

2 of that remaining issue. We again granted the dismissal with the mandate issuing August 21,

2019.

On September 8, 2020, the appellees moved for summary judgment asking for

dismissal of the claim against the estate. In an order drafted by the appellees, the circuit

court granted summary judgment dismissing the claim against the estate nunc pro tunc to

the December 12, 2018 order.

Phifer appealed for a third time. On appeal, he argues that the circuit court erred in

its quiet-title analysis, specifically when it misconstrued an ambiguous deed, causing the

court to miscalculate the mineral ownership interests. He additionally argues that the circuit

court erred in issuing the summary judgment dismissing the claim against the estate nunc

pro tunc to the earlier date. Also before us is a motion to dismiss the appeal filed by the

appellees that was passed to the panel. We will first address the motion to dismiss.

I. Motion to Dismiss

The appellees’ motion to dismiss was passed to the panel for consideration with the

submission of the case. In that motion, they assert that because Phifer has filed notices of

appeal in this case twice and dismissed the same twice, he is barred from bringing this appeal

due to the requirement that an appellant waive pending but unresolved claims in the notice

of appeal.

Arkansas Rule of Appellate Procedure–Civil 3(e)(vi) provides that a notice of appeal

must contain a statement that the appealing party abandons any pending but unresolved

claims. Such an abandonment operates as a dismissal with prejudice effective on the date

3 that the otherwise final order or judgment appealed from was entered. The Cowins argue

that when Phifer abandoned his claims in his notices of appeal, he necessarily also

abandoned his claim against Oullette, rendering it unnecessary to go back to circuit court to

have her dismissed. They contend that as a result, Phifer’s appeal is now untimely. Their

argument, however, is moot. After the second dismissal, the Cowins moved for summary

judgment on the outstanding claim, and the court entered an order granting the same.

Phifer’s appeal timely followed.

II. Nunc pro Tunc

The Cowins additionally attempt to use the nunc pro tunc language from the

summary-judgment order as another way to attack the jurisdiction of this court over this

appeal, the appellant argues that the circuit court erred in granting the summary-judgment

order nunc pro tunc.

Circuit courts have the authority to correct clerical mistakes in an order at any time

with a nunc pro tunc order; it is used to “make the record speak now what was actually done

then.” Ark. R. Civ. P. 60; Francis v. Protective Life Ins. Co., 371 Ark. 285, 293, 265 S.W.3d

117, 123 (2007). A circuit court is permitted to enter a nunc pro tunc order when the record

is being made to reflect that which occurred but was not recorded due to a misprision of the

clerk. Rossi v. Rossi, 319 Ark. 373, 892 S.W.2d 246 (1995). This court has defined a true

clerical error, one that may be corrected by nunc pro tunc order, as “essentially one that

arises not from an exercise of the court’s judicial discretion but from a mistake on the part

of its officers (or perhaps someone else).” Luckes v. Luckes, 262 Ark. 770, 772, 561 S.W.2d

4 300, 302 (1978).

The order here, however, was entered after an exhaustive motion for summary

judgment was made by the appellees. That motion contained extensive argument that was

simply not before the court when it entered its December 12, 2018 order. Thus, it was

erroneous for the court to enter summary judgment nunc pro tunc.

III. Quiet Title

Quiet-title actions have traditionally been reviewed de novo as equity actions. SEECO,

Inc. v. Holden, 2015 Ark. App. 555, at 4, 473 S.W.3d 36, 38. Our standard of review on

appeal from a bench trial is not whether there was substantial evidence to support the finding

of the circuit court, but whether the circuit court’s findings were clearly erroneous or clearly

against the preponderance of the evidence. Mauldin v. Snowden, 2011 Ark. App. 630, at 2,

386 S.W.3d 560, 562. The basic rule in the construction of deeds, as with other contracts,

is to ascertain and give effect to the real intention of the parties, particularly of the grantor,

as expressed by the language of the deed, when not contrary to settled principles of law and

rules of property. Duvall v. Carr-Pool, 2016 Ark. App. 611, at 9–10, 509 S.W.3d 661, 667.

On appeal, Phifer argues that the court’s 75/25 division of mineral rights was error,

and the flaw in its reasoning occurred when it misinterpreted one of the deeds in the chain

of title. A very brief recitation of the chain of title prior to the deed in question warrants

discussion.

In 1983, the appellees owned as tenants by the entirety an undivided one-half interest

in 230 acres of land in White County. Of that 230 acres, they owned an undivided one-half

5 of the mineral rights to 190 acres. The owners of the other undivided one-half of the land

and mineral rights were Richard’s parents, Wilburn and Ruth Cowin. The mineral rights to

the other forty acres undisputedly belong to another party and are not at issue in this appeal.

In 1983, the following two deeds were executed in succession: the first deed (Exhibit

G) granted an undivided one-half of the mineral rights to Richard and Margot; 1 the second

(Exhibit H) deeded all of the land and all of the mineral rights, except for the one-half of the

mineral rights owned exclusively by Richard and Margot, to a third party named Ray Carter.

On appeal, Phifer expresses no issue with the court’s interpretation of Exhibit G; he

instead argues that the language from Exhibit H is ambiguous, and the circuit court

misinterpreted it, resulting in an erroneous division of mineral interests.

Exhibit H reads as follows: “That we, Wilburn Wesley Cowin and Ruth A Cowin,

husband and wife, and Richard W. Cowin and Margot P. Cowin, husband and wife,

GRANTORS,” grant to Ray Carter the 190 acres in White County “LESS AND EXCEPT

one-half of all oil, gas and other minerals in, on and under the land under examination

previously conveyed to Richard W. Cowin and Margot P. Cowin.”

The construction of a deed is a matter of law, which we review de novo. Maxey v.

1 The circuit court found that Exhibit G was “so vague as to make it impossible to determine the extent of the mineral rights being conveyed by each grantor” and concluded it was of no effect. We disagree. The deed conveyed from the four grantors to Richard and Margot “one-half of all oil, gas, coal and other minerals of every kind, character and description whatsoever, whether herein specifically referred to you by reference under the general classification of minerals in, under and upon” the 190 acres. That means that Richard and Margot received half, and the two couples together owned the other half.

6 Kossover, 2009 Ark. App. 611, at 1. When interpreting a deed, we give primary consideration

to the intent of the grantor. Harrison v. Loyd, 87 Ark. App. 356, 365, 192 S.W.3d 257, 263

(2004). We examine the deed from its four corners for the purpose of ascertaining that intent

from the language employed. Id. Further, we gather the intention of the parties, not from

some particular clause, but from the whole context of the agreement. Gibson v. Pickett, 256

Ark. 1035, 1040, 512 S.W.2d 532, 535–36 (1974). We will resort to the rules of construction

only when the language of the deed is ambiguous, uncertain, or doubtful. Barger v. Ferrucci,

2011 Ark. App. 105, at 3–4.

The clause from Exhibit H, standing alone, could be considered ambiguous due to

the phrase “previously conveyed” because we do not know what was “previously conveyed”

from the four corners of the deed alone. When a clause in a deed is ambiguous, a court is to

interpret the language in the light of attendant circumstances, putting itself in the place of

the parties, and particularly the grantor. Gibson v. Pickett, 256 Ark. 1035, 1041, 512 S.W.2d

532, 536 (1974). One acceptable way to determine the attendant circumstances is to look at

the chain of title. Id.

Examining this deed within the chain of title, then, it is clear that the phrase “LESS

AND EXCEPT one-half of all oil, gas and other minerals in, on and under the land under

examination previously conveyed to Richard W. Cowin and Margot P. Cowin” means the

one-half mineral interest conveyed to Richard and Margot in the immediately preceding

deed, which was executed on the same day and immediately before the Exhibit H deed.

Accordingly, at the conclusion of the transactions in 1983, Ray Carter owned all 190

7 acres of the land and half the mineral rights associated with it, and the appellees owned the

other half. To correctly determine Phifer’s interest in the land, however, we have to examine

three more transactions.

In 1984, Carter and his wife quitclaimed all their interests in the land at issue back

to Wilburn and Ruth Cowin, as husband and wife, and Richard and Margot, as husband

and wife. Thus, the two couples owned the land and half of the mineral rights, and the

appellees owned the other half of the mineral rights.

In 1988, Richard and Margot deeded the land back to Wilburn and Ruth, reserving

their mineral rights. This put the land in Wilburn and Ruth’s possession but left the mineral

rights untouched. So, in 2008, when Ruth, as the surviving widow of Wilburn Cowin deeded

without reservation the property to Phifer, the final interests stood as follows: Phifer owned

the land, Richard and Margot owned half the mineral rights, and Phifer split the other half

of the mineral rights with Richard and Margot.

Put another way, Phifer owns an undivided half of an undivided half of the mineral

rights. And although we took a different route, we arrived at the same conclusion as the

circuit court: 75 percent of the mineral interests to the appellees and 25 percent to Phifer.

We can affirm a circuit court when we reach the same result, even if we state a different

reason. See, e.g., Sluder v. Steak & Ale of Little Rock, Inc., 368 Ark. 293, 245 S.W.3d 115 (2006).

We affirm the quiet title determination. Regarding the summary-judgment order

issued by the circuit court nunc pro tunc, we affirm it as modified to reflect that it was

effective as of the date it was entered.

8 Affirmed as modified.

GRUBER and VAUGHT, JJ., agree.

Simpson & Simpson, by: James A. Simpson, Jr., for appellant.

George Carder and Robert S. Tschiemer, for separate appellees Richard Cowin and

Margot Cowin.