Wright v. Viele

Cite as 2013 Ark. App. 471

ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-13-24

DELANE WRIGHT and LINDA Opinion Delivered September 4, 2013
WRIGHT
APPELLANTS APPEAL FROM THE VAN BUREN
COUNTY CIRCUIT COURT
V. [NO. CV2008-212]

HONORABLE RHONDA K. WOOD,
NANCY E. VIELE et al. JUDGE
APPELLEES
AFFIRMED

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.

1
We dismissed an earlier appeal for lack of a final order. Wright v. Viele, 2012 Ark.
App. 459.
2
The appellees are Nancy Viele; PEC Minerals, LP; Stephanie Darnell; Timothy
Hewett; Colonial Royalties Limited Partnership; Pentagon Oil Co.; and Chaparral Royalty
Co.
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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 property

to Gunn. The deed from the Phillipses to Gunn was recorded on May 29, 1929.

In 1943, O.D. Gunn’s heirs conveyed the property to the Wrights’ predecessors in title

by warranty deed. The Wrights obtained the property 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.

3
The property was conveyed to J.D. Wright and Delane Wright as tenants in common
in 1972. J.D. Wright and Delane Wright conveyed the property to Delane and Linda
Wright as tenants by the entirety in 1975.

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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.

4
The remaining defendants for whom service was attempted by warning order 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; Charles Hewitt; Griffin Moore; E.F. Evers; General Crude Oil Co.; W.A. Brown;
Brown Foundation, Inc.; Stephanie H. Darnell; and Timothy Hewett.

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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 December 4, 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

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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

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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

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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 the service in the 1990–91 case. Arkansas Rule

of Civil Procedure 4 requires service resulting in actual notice in all cases where the identity

or whereabouts of the defendant is known; however, in instances where the defendant’s

identity or whereabouts is demonstrated to be unknown, this rule provides a method of

constructive notice that is reasonably calculated to give the defendant actual notice of the

proceedings and an opportunity to be heard. See Horne v. Savers Fed. Sav. & Loan Ass’n, 295

Ark. 182, 747 S.W.2d 580 (1988). The 1990 version of Arkansas Rule of Civil Procedure

4(f), which was in force at the time of the earlier proceeding, provided as follows:

(f) Service Upon Defendant Whose Identity or Whereabouts Is Unknown: (1)
Where it appears by the affidavit of a party or his attorney that, after diligent inquiry,
the identity or whereabouts of a defendant remains unknown, service shall be by
warning order issued by the clerk and published weekly for two consecutive weeks in
a newspaper having general circulation in a county wherein the action is filed and by
mailing a copy of the complaint and warning order to such defendant at his last known
address, if any, by any form of mail with delivery restricted to the addressee or the
agent of the addressee. This subsection shall not apply to actions against unknown

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tort-feasors. (2) In all actions in which the plaintiff has been granted leave to proceed
as an indigent without prepayment of costs, where it appears by the affidavit of a party
or his attorney that, after diligent inquiry, the whereabouts of a defendant remains
unknown, service shall be by warning order issued by the clerk and conspicuously
posted for a continuous period of 30 days at the courthouse or courthouses of the
county wherein the action is filed and by mailing by the plaintiff or his attorney of a
copy of the complaint and warning order to the defendant at his last known address,
if any, by any form of mail with delivery restricted to the addressee or the agent of the
addressee.

At the time of the earlier proceeding, warning orders were governed by the provision of Rule

4(j), which stated:

In any case in which a party seeks a judgment which affects or may affect the
rights of persons who are not and who need not be subject personally to the
jurisdiction of the court, the clerk shall issue a warning order. The warning order shall
state the caption of the pleadings, a description of the property or other res to be
affected by the judgment of the court, and it shall warn any interested person to appear
within 30 days from the first date of publication of the warning order or be barred
from answering or asserting his interest. The warning order shall be published weekly
for at least two weeks in a newspaper of general circulation in the county in which the
court is held. No default judgment shall be taken pursuant to this procedure unless the
party seeking the judgment or his attorney has filed with the court an affidavit stating
that thirty days have elapsed since the first publication of the warning order. In any
case in which an interested person is known to the party seeking judgment or his
attorney, the affidavit shall also state that 30 days have elapsed since a letter enclosing
a copy of the warning order and the pleadings was sent to the known interested person
at his last known address by a form of mail restricting delivery to the addressee or the
agent of the addressee.

It is settled law that, being in derogation of the common law, statutory service

requirements are strictly construed and compliance must be exact. Rettig v. Ballard, 2009 Ark.

629, 362 S.W.3d 260. This rule applies equally to the service requirements imposed by rules

of the court. Proceedings conducted where the attempted service was invalid render

judgments arising under them void. Wilburn v. Keenan Cos., Inc., 298 Ark. 461, 768 S.W.2d

531 (1989); Edmonson v. Farris, 263 Ark. 505, 565 S.W.2d 617 (1978); Davis v. Schimmel, 252

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Ark. 1201, 482 S.W.2d 785 (1972). Where the judgment is void for lack of jurisdiction, no

proof of a meritorious defense is required. Black v. Merritt, 37 Ark. App. 5, 822 S.W.2d 853

(1992).

The Wrights argue that this is an improper collateral attack on the 1991 decree and

that appellees’ action to set aside the 1991 decree is barred by the three-year statute of

limitations found in Ark. Code Ann. Section 18-60-510(a) (Repl. 2003). We disagree. Any

proceeding to have a judgment declared void on the ground that it was entered without

service or notice is a direct, rather than a collateral, attack on the judgment. Davis, 252 Ark.

at 1209, 482 S.W.2d at 790. Moreover, the limitation found in section 18-60-510 does not

apply where notice was not given to persons claiming an interest in the property or minerals.

Welch v. Burton, 221 Ark. 173, 252 S.W.2d 411 (1952); accord Gilbreath v. Union Bank, 309

Ark. 360, 830 S.W.2d 854 (1992) (affirming trial court’s setting aside an earlier quiet-title

decree where the petition to set aside was filed more than four years after entry of the earlier

decree; statute of limitations not discussed).

Citing St. Louis Refrigerator & Wooden Gutter Co. v. Thornton, 74 Ark. 383, 86 S.W. 852

(1905), the Wrights also argue that appellees cannot prevail because they failed to prove their

own title and must rely “upon the strength of his own title and cannot rely upon the weakness

of his adversary’s.” However, where the parties trace their title to a common source, the rule

does not apply. Brooks v. Johnson, 250 Ark. 309, 465 S.W.2d 103 (1971). Here, the parties

trace their respective titles to O.D. Gunn.

Under the 1990 version of Rule 4(j), a default judgment could not be taken unless the

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plaintiff had filed with the court an affidavit stating that thirty days had passed since the

warning order was first published or posted and that a copy of the order and complaint was

mailed to the defendant’s last known address.5 There was no such affidavit filed in the 1990–

91 case. The Wrights argue that the filing of two affidavits of publication complied with the

requirement stating that more than thirty days had passed before the 1991 order was entered.

The argument is contrary to the express language of 1990 Rule 4(j) and this court’s recent

decision in Pulaski Choice, L.L.C. v. 2735 Villa Creek, L.P., 2010 Ark. App. 451, 376 S.W.3d

500. In their reply brief, the Wrights argue that Pulaski Choice involved a requirement that did

not exist in the 1990 version of Rule 4. This is incorrect because the requirement existed in

1990 in a different section of Rule 4.

Although proof of publication may be by affidavit of the editor, proprietor, manager,

or principal accountant of the newspaper in which the publication occurred, see Ark. Code

Ann. § 16-3-104(a) (Repl. 2010), such an affidavit does not address the requirement that a

copy of the complaint be mailed to the defendant or state that more than thirty days has

elapsed since the first publication of the warning order. Pulaski Choice, 2010 Ark. App. 451,

at 6, 376 S.W.3d at 504. Moreover, the rule requires that either the plaintiff or his attorney

make such an affidavit, not the official of the newspaper in which the warning order appeared.

There is another reason that neither the parties nor the circuit court discussed that

supports the circuit court’s decision: a misnomer in the warning order and caption of the case

that purports to warn E. Crows to appear and defend. The proper defendant should have been

5
These same requirements are now found in Ark. R. Civ. P. 4(f).

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E. Graves, the party to whom appellees trace their title after the conveyance from O.D. Gunn

in 1929.

A misnomer is a mistake in naming a party. Nucor Corp. v. Kilman, 358 Ark. 107, 132,

186 S.W.3d 720, 736 (2004) (quoting Black’s Law Dictionary 1015 (7th ed. 1999)). Where the

mistake in naming the party is so substantial or material as to indicate a different entity, it is

fatal. See Crenshaw v. Special Adm’r of Estate of Ayers, 2011 Ark. 222, at 4; Shotzman v. Berumen,

363 Ark. 215, 225, 213 S.W.3d 13, 17–18 (2005). Here, O.D. Gunn conveyed a one-half

mineral interest to E. Graves, who was not listed as a defendant in the caption of the Wrights’

1990 quiet-title complaint. An “E. Crows” was listed as a defendant. The body of the

complaint mentions “E. Grows” and E. Graves as persons who may claim an interest in the

minerals. The prayer for relief again mentions “E. Crows,” but not “E. Grows” or E. Graves.

Both the affidavit for warning order and the warning order itself listed “E. Crows” as one of

the defendants. The decree quieting title in the Wrights recited that “E. Crows” was one of

the defendants constructively served and in default. Based on Crenshaw and Shotzman, this was

a fatal misnomer resulting in the decree quieting title being void.

Affirmed.

WHITEAKER and HIXSON, JJ., agree.

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

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

Halstead, for appellees.

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