TUCKER v. NEW DOMINION, L.L.C.

TUCKER v. NEW DOMINION, L.L.C.
2010 OK 14
230 P.3d 882
Case Number: 106322
Decided: 02/23/2010

THE SUPREME COURT OF THE STATE OF OKLAHOMA

DON W. TUCKER and LARRY B. JOHNSON, Plaintiffs/Appellants,
v.
NEW DOMINION, L.L.C., Defendant/Appellee.

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.

¶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 defendants 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.,

¶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.

¶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.,

III. ANALYSIS

¶13 The Commission when issuing pooling orders is functioning in an adjudicatory capacity. See Harry R. Carlile Trust v. Cotton Petroleum Corp.,

¶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 Constitution

¶15 When notice is by publication, as it is here, the general rule tends toward strictness. Grannis, 234 U.S, at 395. However, even with names exact accuracy is not required, and the well-established doctrine of idem sonans is a recognition of this. Id. In employing the doctrine of idem sonans,

¶16 The combination of the letters "hrdy" is unknown in the English language,

¶17 The doctrine of idem sonans is only one test under which we examine the circumstances here for compliance with due process. In answering the question whether, under all the circumstances, the person being haled into court would be misled into thinking that someone else was being summoned, Collingsworth,

¶18 In Collingsworth v. Hutchison,

¶19 In Grannis v. Ordean,

¶20 Both Grannis and Collingsworth considered that the actions were in rem and that the notices described the land at issue. Both courts looked at the auditory and visual similarities as well as asking whether a person for whom the notice was intended would be sufficiently warned that the notice affected the person's interest in the land. We find the tests employed in the Grannis and Collingsworth opinions are applicable here.

¶21 We note the similarity in the sounds of "Olinka Hrdy" and "Olinka Hardy," but this is not the only test we employ. Here "Olinka Hrdy" and "Olinka Hardy" are visually similar. The notice here contains a description of the subject property which would alert the owner of the proceedings against the property. But ultimately our decision rests, not only in the auditory and visual similarities in the names but also, on the fact that neither Ms. Hrdy nor the plaintiffs would have been mislead by the misspelling and would have recognized that Ms. Hrdy's property could be affected by the Commission proceedings. The publication notice here met the requirements of due process. Ms. Hrdy and the plaintiffs had constructive notice of the Commission proceedings and, thus, were bound by the Commission's pooling order. Thus, the plaintiffs' mineral interests in the subject property were not superior to the interest claimed by New Dominion.

IV. CONCLUSION

¶22 We conclude that notwithstanding the misspelling of Olinka Hrdy's name as Olinka Hardy in the publication notice and in the documents filed with the Commission in the pooling proceeding, the plaintiffs, as Olinka Hrdy's successors in interest, are bound by the Commission's forced pooling order, and the plaintiffs' mineral interests are secondary to the rights extended to New Dominion by the forced pooling order.

¶23 The Court of Civil Appeals' opinion is vacated. The district court's judgment in New Dominion's favor is affirmed, and the cause is remanded to the district court.

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

ALL JUSTICES CONCUR.