Selrahc LP v. Seeco, Inc.
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Cite as 2009 Ark. App. 865
ARKANSAS COURT OF APPEALS
DIVISION III
No. CA09-378
SELRAHC LIMITED PARTNERSHIP
and KATINA ROYE PEEVYHOUSE
(formerly known as KATINA R. ROYE)
APPELLANTS
V.
SEECO, INC., et al.
Opinion Delivered December
16, 2009
APPEAL FROM THE VAN BUREN
COUNTY CIRCUIT COURT,
[NO. CV2008-92]
HONORABLE RHONDA K. WOOD,
JUDGE
APPELLEES
AFFIRMED
DAVID M. GLOVER, Judge
The principal issue in this case is whether the tax sale of a severed mineral interest, not
subjoined to the surface assessment, is valid. The circuit court found that the mineral interest
had been assessed and forfeited improperly and quieted title in the appellees. We are thus
confronted with the same situation in which we found ourselves when we decided Blackburn
v. Cline, 8 Ark. App. 108, 650 S.W.2d 588 (1983). As in Blackburn, we affirm the circuit
court.
Facts
Appellants Selrahc Limited Partnership and Katina Peevyhouse trace their claim to a
November 1973 tax deed. The property was sold for 1970 taxes. One group of appellees,
referred to as the “Morgan defendants” or “Morgan heirs,” claim some of the mineral
Cite as 2009 Ark. App. 865
interests as the heirs of Quincy A. Morgan and Mabel May Morgan. The Morgan claim dates
from 1923. Appellee Dana Mansfield, one of the grandchildren of Wilbur J. Mansfield, claims
another part of the mineral interests. Appellee Seeco, Inc., is a producer who leases the
mineral interests from the other appellees.
Appellants filed suit seeking to quiet title to the mineral interest in themselves. The
petition asserted that appellants, or their predecessors in title, had paid all property taxes on
the mineral interests since 1979, and that the Van Buren County Assessor had maintained the
assessment records on the mineral interests by indexing them according to section, township,
and range, making the mineral interests identifiable by tract. Appellants additionally sought
to have Arkansas Code Annotated section 26-26-1112 (Repl. 1997), purporting to eliminate
the subjoinder requirement, given retroactive application. Appellees filed separate answers to
the petition in which they denied the material allegations. The Morgan heirs and the
Mansfield heirs both filed counterclaims seeking to quiet title to their respective mineral
interests in themselves.
Appellees also filed a motion for summary judgment that asserted that appellants’ tax
title was void as a matter of law.1 In their brief in support of the motion, the Morgan heirs
asserted that the Van Buren County Assessor did not maintain the mineral assessment records
immediately following the same tract’s surface assessment, and submitted an affidavit from
Trina Jones, the current Van Buren County Assessor, to that effect. In response, appellants
1
The motion for summary judgment was filed by the Morgan heirs. It was adopted or
supported by the other appellees.
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Cite as 2009 Ark. App. 865
submitted Jones’s deposition in which she stated that her affidavit was not entirely accurate.
Jones testified that both the surface interests and the mineral interests are indexed in a single
volume by section, township, and range. However, she indicated that the surface assessments
are in one section of the book, while the mineral assessments are in a different section. As far
as Jones knew, the mineral assessments had never been subjoined to their respective surface
assessments.
The circuit court entered an order granting summary judgment to appellees. The court
relied on the Sorkin v. Myers, 216 Ark. 908, 227 S.W.2d 958 (1950), line of cases and noted
that this was a rule of property that the circuit court was without power to change. The court
rejected appellants’ invitation to apply Arkansas Code Annotated section 26-26-1112
retroactively, noting that the deeds at issue predated the enactment of the statute. The court
later entered a final judgment pursuant to Arkansas Rule of Civil Procedure 54(b). This appeal
timely followed.
Standard of Review
Normally, we determine if summary judgment is proper based on whether evidentiary
items presented by the moving party leave a material fact unanswered, viewing all evidence
in favor of the nonmoving party. Hisaw v. State Farm Mut. Auto Ins. Co., 353 Ark. 668, 122
S.W.3d 1 (2003). However, in cases such as this where the parties do not dispute the essential
facts, we simply determine whether the moving party was entitled to judgment as a matter
of law. Jackson v. Blytheville Civ. Serv. Comm’n, 345 Ark. 56, 43 S.W.3d 748 (2001).
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Cite as 2009 Ark. App. 865
Arguments on Appeal
1. Subjoinder Requirement
Appellants first argue that the circuit court erred in finding their tax deed void because
the manner in which the Van Buren County Assessor maintained its records did not deprive
the original owners of due process. As appellants point out, the first mention of the
requirement that the mineral interest be listed immediately below, or subjoined to, the surface
interest is found in Sorkin, supra. There, the supreme court said mineral interests had been
listed in a special book with the names of the owners listed alphabetically. The court noted
that a deputy in the county clerk’s office had testified that it was not possible to find a
particular mineral interest in the book without checking the entire list of almost four thousand
names, and that this resulted from the fact that there was no order or system with reference
to the land calls. The court then observed that Ark. Stat. Ann. § 84-402, now codified as Ark.
Code Ann. § 26-26-702 (Repl. 1997), provides that the county clerk shall make and deliver
to the assessor, in books prepared for that purpose, an abstract of lands; that in listing acreage
he shall commence with the lowest number of township and range in the county, and in the
northeast corner of each township; and that he shall then proceed numerically with all the
sections, townships, and ranges. After calling attention to the statutes dealing with the
assessment of mineral and timber interests severed from the fee, the court stated:
The minerals, being primarily an interest in the land, are severable only because the
legislative authority has made them so; yet for taxing purposes they are so closely
related to the realty that ownership identification and accuracy make it well-nigh
imperative that the mineral listings be subjoined to the land assessments.
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Cite as 2009 Ark. App. 865
216 Ark. at 912, 227 S.W.2d at 960 (emphasis in original).
Appellants argue that the Sorkin court did not state that subjoining was absolutely
necessary and that its holding was really based on the fact that the listing procedures used
made it difficult to find the assessment status of any particular mineral interest. Some support
for that position can be found in Davis v. Stonecipher, 218 Ark. 962, 239 S.W.2d 756 (1951),
the next case that considered the matter. The Davis court held a tax title void, noting that
the same erroneous method of arranging the names of the owners alphabetically, rather than
arranging the land by section, township, and range, existed in that case. Nothing was said in
that case about the necessity of subjoining the mineral listing to the surface assessment, and
again, nothing was said about such a requirement in Smiley v. Thomas, 220 Ark. 116, 246
S.W.2d 419 (1952). The requirement, however, was mentioned in Steinbarger v. Keever, 219
Ark. 411, 242 S.W.2d 713 (1951), although the opinion indicates that the real vice in the
assessment procedure may have been the failure to list the mineral interests in the order of
section, township, and range. In Adams v. Bruder, 275 Ark. 19, 627 S.W.2d 12 (1982), there
is a more definite requirement of subjoining, but the opinion notes that the mineral interests
were not listed by section, township, and range. The supreme court followed Adams in Hurst
v. Rice, 278 Ark. 94, 643 S.W.2d 563 (1982). In Walker v. Western Gas Co., 5 Ark. App. 226,
635 S.W.2d 1 (1982), we held that the case was controlled by Adams.
In Blackburn, supra, the mineral interest was forfeited for 1931 taxes. The mineral
interests were listed by section, township, and range in the same book as the surface interests.
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Cite as 2009 Ark. App. 865
The appellants in that case argued, as appellants do here, that subjoinder was not absolutely
required by the statutes. Nevertheless, we affirmed, stating:
We recognize the force of the appellants’ argument. . . . But we are faced with
two problems. First, we do not agree that the present-day regulations of the
Assessment Coordination Division can affect the assessment of mineral interests in
1931. Second, even if we agreed with the appellants’ argument as to the effect of the
cases discussed above, we are faced with the Arkansas Supreme Court decision of
Garvan v. Potlatch Corporation, 278 Ark. 414, 645 S.W.2d 957 (1983).
In that case the court cited three of the cases discussed above, Adams,
Steinbarger, and Sorkin, and said, “Those cases all hold that when a separate assessment
is made for mineral interests, the assessment must be ‘subjoined’ to the fee assessment.”
The opinion defines the word “subjoined” and states, “The separate assessments must
be listed individually immediately after each respective fee or surface interest.” Thus,
the question of whether the subjoining of surface and mineral rights is absolutely
necessary is not open for us to decide in this case.
8 Ark. App. at 110-11, 650 S.W.2d at 590. This language is equally applicable to the present
case.
After our opinion in Blackburn, the supreme court addressed and rejected an argument
similar to the one appellants make here, that subjoinder is not required where the mineral
interests were listed separately, but also were listed by section, township, and range. Dawdy
v. Holt, 281 Ark. 171, 662 S.W.2d 818 (1984). The court stated:
The appellants also point out that, unlike the case in Sorkin, the assessment method
used did not deprive the taxpayer of due process of law, obscure the information from
the taxpayer, prejudice the taxpayer, or burden an easy determination by an owner of
his tax status at a given time. Our cases have taken a clear direction for years in this
matter and if any change is needed, as the appellants suggest, it is a matter for the
legislature.
281 Ark. at 174, 662 S.W.2d at 819.
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Cite as 2009 Ark. App. 865
As part of this point, appellants also argue that the supreme court’s departure from a
due-process rationale for the subjoinder rule in Dawdy and Garvan constitutes an
unconstitutional violation of the separation-of-powers doctrine. However, the issue is not
preserved for our review because the circuit court did not clearly and specifically address the
issue. To preserve an argument for appeal, even a constitutional one, the appellant must
obtain a clear ruling below. Doe v. Baum, 348 Ark. 259, 72 S.W.3d 476 (2002).2
2. Retroactive Application of Section 26-26-1112
In their second point, appellants argue that section 26-26-1112 should be retroactively
applied to the present case because it was in effect at the time the circuit court made its
decision. The legislature accepted the supreme court’s invitation in Dawdy and enacted Act
961 of 1985, now codified at Ark. Code Ann. § 26-26-1112, which provides that “[c]ounty
assessors may maintain separate records for severed mineral interests if the records are
maintained by legal description of the surface estate in the same manner as records of the
estates are maintained.”
The supreme court acknowledged section 26-26-1112 in Gilbreath v. Union Bank, 309
Ark. 360, 830 S.W.2d 854 (1992), but declined to apply it retroactively. We, like the circuit
court, cannot overrule a decision of the Arkansas Supreme Court. Osborne v. Bekaert Corp.,
97 Ark. App. 147, 245 S.W.3d 185 (2006). We also cannot ignore the fact that the tax
2
We have considered the authorities contained in appellants’ post-argument motion to
cite additional authorities on this issue. However, we are not persuaded that the issue is
preserved.
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Cite as 2009 Ark. App. 865
forfeiture at issue occurred in 1970, long before section 26-26-1112 was enacted. Gilbreath
involved an assessment and forfeiture that occurred in 1981. Moreover, this court in Blackburn
refused to apply an administrative regulation similar to section 26-26-1112 to a 1931 tax
assessment.
Appellants also argue that section 26-26-1112 was a “curative act” designed to
overcome the subjoinder problem. The issue is whether the legislature intended it to be a
curative act. Surely it had this issue in mind, given the fact that the act was passed in such
close proximity to the supreme court’s Dawdy decision, and Dawdy invalidated a tax deed. On
the other hand, if the legislature had intended the act to have retroactive application so as to
render tax deeds valid, it could easily have said so.
3. Equitable Arguments
For their third point, which they characterize as an alternative basis, appellants argue
that principles of equity and estoppel preclude appellees from defeating their record title. The
basis for the argument is that appellees have acknowledged that they have not paid property
taxes on the mineral interests for more than thirty years. The supreme court rejected this very
argument in Adams, supra.
Affirmed.
GLADWIN and BROWN, JJ., agree.
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