T.H. McElvain Oil & Gas Ltd. P'ship v. Benson-Montin-Greer Drilling Corp.

388 P.3d 240

2017 NMSC 004

T.H. MCELVAIN OIL & GAS LIMITED PARTNERSHIP, a New Mexico limited partnership; Karen Ann Handley Anderson, an individual; Susan R. Handley Mcgrew, an individual; Billie L. Phillips, an individual; Billie L. Phillips Recoverable Trust Dated April 23, 1996, Billie L. Phillips Trustee; Judy Lynn Quint, an individual; Ronald Charles Weeber, an individual; Lucile Alice Northcote Trust Dated May 29, 1996, Billie L. Phillips, Successor Trustee, Plaintiffs–Respondents,

v.GROUP I: BENSON–MONTIN–GREER DRILLING CORP., INC., a Delaware corporation; Elizabeth Jeanne Turner Calloway, an individual; Kelly R. Kinney, an individual; Katherine P. Miller, an individual; Ronald Michael Miller, an individual; Vickie Roann Miller, an individual; Thomas R. Miller, an individual; Fred E. Turner, LLC, a Delaware limited liability company; John Lee Turner, an individual; Linda Voitl a/k/a Linda Davis, an individual; Estate of William G. Webb, deceased, John G. Taylor, independent executor, Defendants–Petitioners,Group II: Cheryl U. Adams, an individual; E'twila J. Axtell, an individual; Bp America Production Company, a Delaware corporation; Coastal Waters Petroleum Company, Inc., a Louisiana corporation; Energen Resources Corporation, an Alabama corporation; The Estate of Anne B. Little, First Security Bank of New Mexico, as personal representative; Lana Gay Phillips, an individual; Henrietta Schultz, an individual; The Frank and Henrietta Schultz Revocable Trust Dated January 2, 1990, Henrietta Schultz, Trustee; Schultz Management, LTD., a Texas limited partnership; J. Glenn Turner, Jr., LLC, a Delaware limited liability company; Mary Frances Turner, Jr. Trust, JP Morgan Chase Bank, NA, Trustee, Defendants,Group III: All Unknown Claimants of Interest In the Premises Adverse to the Plaintiffs, Defendants.

and

T.H. McElvain Oil & Gas Limited Partnership, a New Mexico limited partnership; Karen Ann Handley Anderson, an individual; Susan R. Handley Mcgrew, an individual; Billie L. Phillips, an individual; Billie L. Phillips Recoverable Trust Dated April 23, 1996, Billie L. Phillips, Trustee; Judy Lynn Quint, an individual; Ronald Charles Weeber, an individual; Lucile Alice Northcote Trust Dated May 29, 1996, Billie L. Phillips, Successor Trustee, Plaintiffs–Respondents,

v.Group I: Benson–Montin–Greer Drilling Corp., Inc., a Delaware corporation; Elizabeth Jeanne Turner Calloway, an individual; Kelly R. Kinney, an individual; Katherine P. Miller, an individual; Ronald Michael Miller, an individual; Vickie Roann Miller, an individual; Thomas R. Miller, an individual; Fred E. Turner, LLC, a Delaware limited liability company; John Lee Turner, an individual; Linda Voitl a/k/a Linda Davis, an individual; Estate of William G. Webb, deceased, John G. Taylor, independent executor, Defendants,Group II: Cheryl U. Adams, an individual; E'Twila J. Axtell, an individual; Lana Gay Phillips, an individual; Defendants–Petitioners,andBp America Production Company, a Delaware corporation; Coastal Waters Petroleum Company, Inc., a Louisiana corporation; Energen Resources Corporation, an Alabama corporation; The Estate of Anne B. Little, First Security Bank of New Mexico, as personal representative; Henrietta Schultz, an individual; The Frank and Henrietta Schultz Revocable Trust Dated January 2, 1990, Henrietta Schultz, Trustee; Schultz Management, Ltd., a Texas limited partnership; J. Glenn Turner, Jr., LLC, a Delaware limited liability company; Mary Frances Turner, Jr. Trust, JP Morgan Chase Bank, NA, Trustee, Defendants,

Group III: All Unknown Claimants of Interest In the Premises Adverse to the Plaintiffs, Defendants.

NO. S–1–SC–34993

NO. S–1–SC–34997

Supreme Court of New Mexico.

Filing Date: October 20, 2016

Rehearing Denied November 9, 2016

Gallegos Law Firm, P.C., Jake Eugene Gallegos Michael, J. Condon, Santa Fe, NM, for Petitioners Group I.

Miller Stratvert P.A., Dylan O'Reilly, Luke Salganek, Santa Fe, NM, for Petitioners Group II.

Cuddy & McCarthy, LLP, John F. McCarthy, Jr., Arturo L. Jaramillo, Y. Jun Roh, Santa Fe, NM, Nixon Shefrin Hensen Ogburn, P.C., Herbert A. Delap, Greenwood Village, CO, for Respondents T.H. McElvain Oil & Gas Limited Partnership, et al., Carson Ryan LLC, Joel M. Carson, III, Roswell, NM, for Amicus Curiae Landmen's Association.

OPINION

VIGIL, Justice.

I. INTRODUCTION

{1} The underlying claim giving rise to this controversy constitutes a collateral attack, requiring us to determine whether it is apparent on the face of a 1948 quiet title judgment that the district court, which entered said judgment, affirmatively lacked jurisdiction over certain parties because they were notified by publication. It is alleged that in the 1948 lawsuit such notice violated the Due Process Clause, depriving the district court of jurisdiction. Only when a party's whereabouts are not reasonably ascertainable following diligent search and inquiry can constructive notice substitute for personal notice of suit. Here, constructive service of process by publication satisfied due process and established the 1948 district court's personal jurisdiction. Therefore, the district court's 1948 quiet title judgment was not void, and, accordingly, we reverse the judgment of the Court of Appeals.

II. BACKGROUND

{2} This opinion addresses the consolidated appeals of two groups of Defendants from a Court of Appeals ruling favorable to T.H. McElvain Oil & Gas Limited Partnership, et al., (Plaintiffs). See T.H. McElvain Oil & Gas Ltd. P'ship v. Benson–Montin–Greer Drilling Corp. , 2015–NMCA–004, ¶ 55, –––N.M. ––––, 340 P.3d 1277. The identities of the numerous parties and undisputed facts underlying the case are as follows.

{3} In 1927 W.W. McEwan conveyed by general warranty deed fee-simple title in 160 acres of land in San Juan County, New Mexico (the Property) to Judson Wilson, Eva Wilson, and Mabel Wilson, as joint tenants with the right of survivorship. The Wilsons, according to that deed, were "of San Diego, California." The following year, on August 16, 1928, the Wilsons executed a general warranty deed in San Diego, conveying the Property to David Miller, subject to the following reservation:

[E]xcepting and reserving to the grantors herein the oil and gas existing or found therein, with the right to enter on for prospecting or developing same, provided they must pay all damage to land or crops in prospecting or development.

{4} On March 14, 1931, David Miller conveyed by quitclaim deed his interest in the Property to his brother, Thomas Miller.¹ The quitclaim deed to Thomas Miller was silent as to any reservation clouding fee-simple title. Thomas Miller did not record the deed until April 29, 1937, after David Miller's death. David Miller had also bequeathed his property in full to Thomas Miller.

{5} Judson Wilson died on May 16, 1929, and Eva Wilson died on December 17, 1944, leaving Mabel Wilson as the only surviving joint tenant from the original W.W. McEwan deed. Nothing in the record indicates that after 1928 Judson and Eva Wilson took any action regarding the Property.

{6} Mabel Wilson, the remaining joint tenant, lived in San Diego until her death in 1970. Mabel had married Charles Weeber prior to 1944, and thereafter went by her married name of Mabel W. Weeber. Following her death, Mabel's estate was probated in the Superior Court for San Diego County. Her estate identified an interest in residential property in San Diego, but made no claim to real property in New Mexico. Charles Weeber's estate similarly made no claim to real property in New Mexico upon his death in 1978.

{7} On October 21, 1948, Thomas Miller filed a quiet title action in the District Court for San Juan County. In his complaint, Thomas Miller alleged that he was the owner in fee simple of a total of 931 acres in San Juan County (the Subject Acreage), with that acreage encompassing the 160–acre Property presently in dispute. Over fifty individuals were named as defendants—all of whom were named as defendants if living, or if deceased, by their unknown heirs—with Judson Wilson, Eva Wilson, and Mabel Wilson each making the list. Thomas Miller's attorney verified under oath the allegations of the complaint, which in part stated that

if any [d]efendants herein ... still are living, and reside in or have their places of residence in the State of New Mexico, the said [d]efendants have secreted themselves so that service of process cannot be had upon them in this cause, and that the only way in which said [d]efendants can be served herein is by publication.

The complaint also alleged that any unknown heirs of deceased were "unknown to the [p]laintiff, and [p]laintiff has been unable to learn or determine the names, places of residence, Post office addresses and whereabouts of the said unknown heirs, after diligent search and inquiry for the same." Based on the allegations in the verified complaint, service of process was accomplished by publication of a Notice of Action Pending in the Times Hustler , a weekly newspaper published in San Juan County—specifically Farmington, New Mexico. Notice of the action ran in the paper for four successive weeks.

{8} On November 19, 1948, the Sheriff of San Juan County attempted to serve notice on all parties and submitted a sheriff's return stating that he

diligently searched and inquired for the [d]efendants, and each of them, in the above-entitled cause; that after such search and inquiry, I have been unable to find any of the [d]efendants in San Juan County, New Mexico, and I have been unable to find the Post Office addresses, places of residence, or whereabouts of the [d]efendants, or either of them.

No named defendant entered an appearance in the quiet title action, but some filed a disclaimer of interest in the Subject Acreage. As such, a quiet title judgment (the 1948 judgment) was entered on December 20, 1948, quieting title to the Subject Acreage—which, again, included the Property—in favor of Thomas Miller. The 1948 judgment provided...