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Peterson v. Jasmanka ex rel. Clark

Supreme Court of North Dakota

February 21, 2014

Jack M. PETERSON, Lilly Peterson, Lacey Mineral and Royalty General Partnership, John R. Lacey, Ramona Lacey, Michael Lacey, Cheryl Lacey, and John Satermo a/k/a Lee John Satermo, Eugene H. Peterson, Plaintiffs and Appellees
v.
Lester JASMANKA, deceased, through Personal Representative Monica CLARK, Chief Financial Officer for Hanna Boys Center, f/k/a Archbishop Hanna Center for Boys, Sonoma, California, and all other persons unknown claiming any estate or interest in or lien or encumbrance upon, the property described in the Complaint, Defendants Lester Jasmanka, deceased, through Personal Representative Monica Clark, Chief Financial Officer for Hanna Boys Center, f/k/a Archbishop Hanna Center for Boys, Sonoma, California, Appellant Hal Nestaval, Darlene Nestaval, Jerry Nestaval, Sara Nestaval and Kirk Nestaval, Sylvia M. Holst, Veneda and Gary Yeager, Michelle and Daniel Riddle, and Jon and Karen Holst, Appellees.

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Andrew T. Forward (argued) and Richard P. Olson (on brief), Minot, N.D., for plaintiffs and appellees Jack M. Peterson, Lilly Peterson, Lacey Mineral and Royalty General Partnership, John R. Lacey, Ramona Lacey, Michael Lacey, Cheryl Lacey, and John Satermo, a/k/a Lee John Satermo, and Eugene H. Peterson.

Joshua A. Swanson (argued) and H. Patrick Weir, Jr. (appeared), Fargo, N.D., for appellant Lester Jasmanka, deceased, through Personal Representative Monica Clark, Chief Financial Officer for Hanna Boys Center, f/k/a Archbishop Hanna Center for Boys, Sonoma, California.

Sandra B. Dittus and Sara R. Behrens, Grand Forks, N.D., for appellees Hal Nestaval, Darlene Nestaval, Jerry Nestaval, Sara Nestaval, and Kirk Nestaval; submitted on brief.

Zachary E. Pelham (argued), Bismarck, N.D., for appellees Sylvia M. Holst, Veneda and Gary Yeager, Michelle and Daniel Riddle, and Jon and Karen Holst.

John W. Morrison, Jr., and Paul J. Forster, Bismarck, N.D., for amicus curiae Whiting Oil and Gas Corporation.

SANDSTROM, Justice.

[¶ 1] Monica Clark, as the personal representative of the estate of Lester Jasmanka, appeals from a district court order denying her motion to vacate a 1990 default judgment quieting title to certain mineral interests in Jack and Eugene Peterson. We affirm, concluding (1) the 1990 judgment was not void and therefore could not be vacated under N.D.R.Civ.P. 60(b)(4), and (2) the motion to vacate the judgment for fraud and misrepresentation under N.D.R.Civ.P. 60(b)(3) was untimely.

I

[¶ 2] Lester Jasmanka owned land in Mountrail County. In 1952, Jasmanka executed a warranty deed transferring the property but reserving 50 percent of the minerals beneath the land. The 1952 deed listed Jasmanka's address as 5506 Modoc Avenue in Richmond, California. In 1959, Jasmanka executed two oil and gas leases on the property. The 1959 leases listed Jasmanka's address as 5505 Modoc Avenue. The 1952 deed and 1959 leases were recorded.

[¶ 3] In 1990, when there had been no use of the minerals in more than thirty years, Jack and Eugene Peterson, who owned the surface estate in the land, published a notice of lapse of mineral interest in the official county newspaper. The Petersons also mailed a notice of lapse of

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mineral interest to Jasmanka at 5505 Modoc Avenue. The Petersons subsequently began a quiet title action, serving Jasmanka by publication and by mailing a copy of the summons and complaint to the 5505 Modoc Avenue address. In affidavits, the Petersons' attorney advised the court that the 5505 Modoc Avenue address was the only known address for Jasmanka. When no response to the summons and complaint was received, the district court entered a default judgment quieting title in the mineral interest in the Petersons.

[¶ 4] Jasmanka had died in California in 1963, and his will was originally probated there. Under the residuary clause and a codicil to his will, the Mountrail County mineral interest would have passed to Hanna Boys Center (" HBC" ). In 2011, Clark, the chief financial officer of HBC, applied for informal probate of Jasmanka's will in Mountrail County. Clark was appointed as personal representative of Jasmanka's estate.

[¶ 5] In 2012, 49 years after Jasmanka's death and 22 years after entry of the default judgment quieting title to the minerals in the Petersons, Clark moved to vacate the 1990 quiet title judgment. Clark contended the Petersons had mailed the notice of lapse of mineral interest to the wrong address and therefore had not strictly complied with the notice requirements in the abandoned minerals statute, N.D.C.C. ch. 38-18.1. Clark argued the district court therefore had lacked personal jurisdiction and the 1990 judgment was void, and the judgment should be vacated under N.D.R.Civ.P. 60(b)(4). Clark also argued the Petersons had fraudulently misrepresented to the court that the 5505 Modoc Avenue address was the only address of record for Jasmanka and the 1990 judgment should therefore be vacated under N.D.R.Civ.P. 60(b)(3). The district court concluded the Petersons had properly served the notice of lapse of mineral interest upon Jasmanka at his last address shown of record in 1990 and denied Clark's motion to vacate the default judgment.

II

[¶ 6] Clark argues the district court erred in concluding the Petersons had complied with the notice requirement in N.D.C.C. § 38-18.1-06(2) when they mailed the notice of lapse of mineral interest to the 5505 Modoc Avenue address in 1990. We first address the appellees' contention that the issue was never properly before the ...


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