XTO Energy, Inc. v. Thacker

2015 Ark. App. 203, 467 S.W.3d 161, 181 Oil & Gas Rep. 340, 2015 Ark. App. LEXIS 250
CourtCourt of Appeals of Arkansas
DecidedApril 1, 2015
DocketCV-14-645
StatusPublished
Cited by16 cases

This text of 2015 Ark. App. 203 (XTO Energy, Inc. v. Thacker) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
XTO Energy, Inc. v. Thacker, 2015 Ark. App. 203, 467 S.W.3d 161, 181 Oil & Gas Rep. 340, 2015 Ark. App. LEXIS 250 (Ark. Ct. App. 2015).

Opinion

RAYMOND R. ABRAMSON, Judge

| tThis appeal concerns the validity of a 1984 decree that quieted title to certain mineral interests in appellees Marshall Ray Thacker and Elena Marie Thacker. 1 Appellants Gilbert Tarver 2 and Barbara Cook (collectively, “Tarver”) filed suit challenging the 1984 decree. On cross-motions for summary judgment, the Van Bu-rén County Circuit Court concluded that jjkhe earlier decree was valid based on its finding that there had been proper service by publication in the 1984 case. The circuit court further concluded that a handwritten notation in the legal description of the deed conveying part of the mineral interest was surplusage and should not be given effect. Based on those conclusions, the court granted the motions for summary judgment filed by the Thackers and those claiming through them and denied the motions for summary judgment filed by Tarver and his oil and gas lessee, appellant XTO Energy Inc. XTO and Tarver appeal, contending that the prior decree quieting title was invalid but that the handwritten notation should be given effect. We reverse on the first point, but affirm on the second point.

Background

The parties trace their titles back to J.T. Riffey and his wife, Mary Riffey. On November 16, 1929, the Riffeys executed a mineral deed conveying an undivided one-half interest in oil, gas, and other minerals to N.H. Tarver and I.R. Timmons. The deed also includes a handwritten notation as part of the legal description, stating “also the South quarter of the Northeast quarter, 40 acres.” The Timmons interest is not an issue in this appeal.

By three deeds, dated August 29, October 6, and November 1, 1930, the Riffeys conveyed the surface and remaining one-half interest in minerals to V.P. Bumpers. Gilbert Tarver and Cook are the heirs of N.H. Tarver, who died intestate in 1978. The Thackers are the successors in title to V.P. Bumpers, having acquired their interest in 1961.

On April 6, 1984, the Thackers filed a petition to quiet title in the chancery court of | RVan Burén County. N.H. Tarver was named as one of several defendants. 3 In their petition, the Thackers asserted that they had been in “open[,] notorious and adverse possession of the subject property for a period in excess of Seven years and have paid taxes on all surface interests in such property.” They further alleged that they owned all of the mineral interests previously conveyed, including the one-half interest in minerals conveyed to Tarver and Timmons. They asserted that the grantor of the various mineral interests listed in the complaint was not the record owner of the property and had no right to convey such property.

On the same day, the Thackers’ attorney executed and filed an affidavit in which he stated that “after diligent inquiry the identity or whereabouts of the following named defendants is unknown: ... N.H. Tarver.” The affidavit listed all of the named defendants, but was otherwise silent with respect to detailing the efforts to locate the named defendants. The warning order was issued the same day. According to the affidavit of publication, the warning order was published for four weeks, between April 11, 1984, and May 2, 1984.

On June 22, 1984, the chancery court entered a decree quieting title in the Thackers. The decree recites that “Defendants appearing not although having been properly served as required by law.”

|4On March 30, 2010, Tarver filed this action. The complaint sought to set aside the 1984 quiet-title decree as void for lack of proper service and the failure to join all titleholders of record. Tarver also sought reformation of the legal description in the 1929 mineral deed to N.H. Tarver and Timmons and to give effect to the handwritten notation.

The Thackers and the other appellees answered, denying the complaint’s material allegations and asserting that the complaint was barred by the earlier quiet-title decree and the statute of limitations found in Arkansas Code Annotated section 18-60-510(a) (Repl. 2003). Cross-claims were filed by several of the other appellees against the Thackers based on their warranting title to their lessees.

All parties moved for summary judgment. Tarver filed a motion for partial summary judgment contesting the validity of the quiet-title decree. In a supporting brief, Tarver argued that the affidavit for warning order was deficient because it contained no information as to the efforts to discover the identity or the whereabouts of N.H. Tarver or his heirs. Tarver did not address the issue of the handwritten notation in the legal description of the deed creating the mineral interest.

In its motion for summary judgment, XTO asserted that the 1984 quiet-title decree was void. XTO also sought a declaration that Tarver was entitled to a one-quarter interest in the minerals in the property. It also argued that the description should be changed from the “South quarter of the Northeast quarter” to “Southwest quarter of the Northeast quarter.” XTO also submitted the court’s file from the 1984 quiet-title action as an exhibit in support of its motion for summary judgment.

| ¿Following a hearing, the circuit court entered an order denying XTO’s motion for summary judgment. After setting out the undisputed facts concerning the chain of title leading to the 1984 quiet-title action and the parties’ arguments, the court found that XTO had failed to set forth legal argument or facts to support summary judgment voiding the 1984 decree. The court also found that the handwritten interlineation in the 1929 deed should be given no effect.

The court later entered a final order, granting summary judgment to the Thack-ers and denying Tarver’s cross-motion for summary judgment. The court found that the 1984 quiet-title decree complied with the Rules of Civil Procedure as they existed in 1984. The court also found that Gilbert Tarver and Barbara Cook were provided valid constructive service by publication. Noting that the parties to the 1929 deed and the clerk who recorded the deed were deceased, the court further found that the handwritten notation in that deed was mere surplusage and should not be given effect. The court dismissed Tar-ver’s complaint with prejudice and quieted title in the minerál interests in the Thack-ers. The order also included a Rule 54(b) certificate in order to preserve the various cross-claims filed against the Thackers. This appeal followed.

Arguments on Appeal

On appeal, Tarver and XTO contend that the circuit court erred in not finding the 1984 quiet-title decree was void for lack of proper service and that it erred in not giving effect to the handwritten inter-lineation on the 1929 mineral deed.

| (¡Standard of Review

Our standard of review depends on the grounds argued by the party who 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. Wright v. Viele, 2013 Ark. App. 471, 429 S.W.3d 314. Otherwise, we review under an abuse-of-discretion standard. Id.

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Bluebook (online)
2015 Ark. App. 203, 467 S.W.3d 161, 181 Oil & Gas Rep. 340, 2015 Ark. App. LEXIS 250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/xto-energy-inc-v-thacker-arkctapp-2015.