FLEETWOOD v. CHEVRON U.S.A. PRODUCTION CO.

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FLEETWOOD v. CHEVRON U.S.A. PRODUCTION CO.
2010 OK CIV APP 63
Case Number: 106849
Decided: 03/25/2010
Mandate Issued: 06/11/2010
DIVISION I
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION I

K. PHIL FLEETWOOD, Plaintiff/Appellant,
v.
CHEVRON U.S.A. PRODUCTION COMPANY, and CHEVRON U.S.A. INC., Defendants/Appellees,
CHESAPEAKE OPERATING, INC.; LINDA GOLDENSTERN; JOE MARKO GOLDENSTERN; AMERADA HESS CORPORATION; JAY ALLEN STOLPER; SCOTT STOLPER, Trustee of the STOLPER FAMILY TRUST DATED JANUARY 11, 1990; ANDREW STOLPER, Trustee of the STOLPER FAMILY TRUST DATED JANUARY 22, 1992; and JORDAN STOLPER, Trustee of the STOLPER FAMILY TRUST DATED OCTOBER 25, 1996, Defendants.

APPEAL FROM THE DISTRICT COURT OF GRADY COUNTY, OKLAHOMA

HONORABLE RICHARD G. VAN DYCK, TRIAL JUDGE

AFFIRMED

Kent P. Sullivan, LEACH, SULLIVAN, SULLIVAN & WATKINS, L.L.P., Duncan, Oklahoma, for Plaintiff/Appellant,
Richard B. Noulles, GABLE GOTWALS, Tulsa, Oklahoma, for Defendant/Appellees,

Wm. C. Hetherington, Jr., Judge:

¶1 K. Phil Fleetwood (Fleetwood) appeals the denial of judgment in his favor as to all Defendants1 and the entry of judgment in favor of Chevron U.S.A. Production Company and Chevron U.S.A. Inc. (Chevron) on his claim attacking the validity of a Receiver Oil and Gas Lease (Receiver Lease). Fleetwood's challenge of the receivership is untimely. Consequently, the trial court order finding his interest is subject to the leasehold rights of Chevron is AFFIRMED.

FACTS

¶2 There is no dispute Bokma Oil Company was established as a Delaware corporation in 1919, or how, through various mineral conveyances, an undivided one-fourth interest in and to all oil, gas and other minerals in and under and produced from the N/E/4 of the S/W/4 of Section 33, Township 3 North, Range 5 West, I.M. Grady County, Oklahoma, (the Section 33 property) was transferred to Bokma by April 7, 1924. Bokma's Delaware corporate charter status became void and suspended on April 1, 1932, by that state due to non-payment of franchise taxes, and in conformity with Delaware's requirements January 1933.2

¶4 In pooling proceedings before the Oklahoma Corporation Commission, LeRoy Weis filed an "Appearance and Answer Of LeRoy Weis on Behalf of Himself and All Stockholders of Bokma Oil Company, A Delaware Corporation, and Other Persons Claiming By, Through or Under Said Corporation" (1957 Appearance) on February 20, 1957. He asserts Bokma was no longer an existing corporation, Bokma had no officers or directors authorized to transact its business, and if there were still other shareholders alive, they are scattered in various locations. He described the difficulty and expense of reinstating the corporate status in Delaware in compliance with the necessary reinstatement legal requirements and identified Bokma's principal stockholders as "B. Weis, R. Reich, M. Sabath and Rudolph Lederer, all of whom are deceased."

¶6 An August 18, 1994 Order in the Lease Suit, quieted title in the minerals and allowed for the leasing of the acreage by receiver for three years with a minimum bonus of $152.00 per acre and a 3/16th royalty. The receiver leased the Bokma interest to Chesapeake Operating, Inc., which thereafter assigned a portion of its interest in one well and its interest to the base of the Viola formation to Chevron. Chevron was not a party to the receivership proceedings and its interest was acquired approximately two years before Fleetwood filed the instant action.

¶7 The record shows this litigation was filed by Fleetwood after Chevron had obtained interests and drilled wells and after LeRoy Weis's March 25, 1998 filing in Delaware of a "Certificate Of Renewal, Restoration Or Revival Of Certificate Of Incorporation" for Bokma and a "Written Consent of Stockholders of Bokma Oil Company" in which he alleged he and his brother Richard were the record owners of a majority of the Bokma stock. LeRoy Weis was able to obtain a reinstatement order based upon these representations.

¶10 In his motion for summary judgment, Fleetwood argues the Receiver Lease conveyed no interest to Chevron, claiming the Lease Suit Order under which the receiver was appointed and the lease interest sold to Chevron were void. He argues publication notice was insufficient, failed to meet minimum due process, and was void for lack of subject matter jurisdiction because the Lease Suit plaintiff had failed to plead and prove a necessary element required by

¶11 Chevron's response and counter motion for summary judgment argues the receivership is not void because the judgment roll for that proceeding establishes the trial court had jurisdiction over Bokma and due process requirements were met. Chevron also argues Fleetwood's action was filed outside of the time allowed under

¶12 The Order appealed finds Chevron's interest is as an assignee of leasehold rights from the surface down to, but not below, the base of the Viola formation under a lease from the Receiver. The trial court entered an order pursuant to

STANDARD OF REVIEW

¶13 In determining whether summary adjudication was appropriate, we must examine the pleadings, depositions, affidavits and other evidentiary materials submitted by the parties and affirm if there is no genuine issue as to any material fact and Chevron was entitled to judgment as a matter of law. Perry v. Green,

¶14 We review the trial court's grant of summary judgment de novo and, while viewing all evidentiary materials in the light most favorable to the nonmoving party, independently decide legal issues resolved by the trial court. Carmichael v. Beller,

ANALYSIS

¶15 The record is clear that Bokma lost its corporate status in Delaware in 1932 and its authorization to conduct business in Oklahoma in 1935. Fleetwood argues the 1994 receivership is invalid and void because the verified petition requesting the appointment lacks the assertion required by

¶17 The plaintiff in the Lease Suit did not personally conduct a search, but the record contains evidence such a search was performed on her behalf. Service by mail was attempted but was unavailing. The trial court's order in the Lease Suit states it appointed a receiver after consideration of the record, the verified petition, "and the evidence presented at the time of the hearing on said petition."

¶18 The long-recognized rule is, as the Court stated in Edwards v. Smith,

¶19 Chevron argues Fleetwood's attack on the judgment in the Lease Suit both is collateral and is untimely. An attack is collateral when it seeks "to avoid, defeat, evade, or deny the force and effect of a final order or judgment in an incidental proceeding other than by appeal, writ of error, certiorari, or motion for new trial." Nilsen v. Ports of Call Oil Company,

¶20 The question Fleetwood presents is whether the failure to include the § 522(a)(5) affirmation in the verified petition in the Lease Suit poses a facial defect fatal to jurisdiction or whether it presents an irregularity in the course of obtaining judgment. We conclude the defect presents the latter, an "irregularity in obtaining a judgment or order."

¶21 Having so concluded, Fleetwood's action falls within the ambit of

¶22 Fleetwood's December 15, 1998 Petition was a collateral attack on the August 18, 1994 judgment in the Lease Suit and, as a matter of law, the attack was untimely pursuant to § 1038 and § 1031(Third).

BUETTNER, P.J., and HANSEN, J., concur.

FOOTNOTES

1 Prior to entry of the order on appeal, Fleetwood dismissed with prejudice his claims against Jay Allen Stolper; Scott Stolper, Trustee of the Stolper Family Trust Dated January 11, 1990; Andrew Stolper, Trustee of the Stolper Family Trust Dated January 22, 1992; and Jordan Stolper, Trustee of the Stolper Family Trust Dated October 25, 1996. An assignment in late 1994 granted these individuals and trusts a 0.625% overriding royalty interest out of the interest of Defendants Linda Goldenstern and Joe Marko Goldenstern. Linda Goldenstern was the plaintiff in the 1994 receivership proceedings. According to Fleetwood, she also owns a 15% working interest from leases and/or assignments in 1957 and 1974.

2 According to the record, Bokma had registered to do business in Oklahoma as a foreign corporation on January 21, 1930, but that authorization was cancelled on May 20, 1935 by the Secretary of State of the State of Oklahoma.