Laettner et al v. Kishiyama et al

Filing 49

MEMORANDUM AND ORDER - The plaintiffs' motion for summary judgment (filing 37 ) is denied. Chaloupka, Holyoke, Snyder, Chaloupka, Hoffmeister & Kishiyama's motion for summary judgment (filing 34 ) is granted. Kishiyama's motion to join (filing 40 ) is granted. The plaintiffs' complaint is dismissed as to all defendants. A separate judgment will be entered. Ordered by Judge John M. Gerrard. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHN LAETTNER, et al.,
Plaintiffs,

4:15-CV-3123

vs.
MEMORANDUM AND ORDER
JOSEPH KISHIYAMA and
CHALOUPKA, HOLYOKE, SNYDER,
CHALOUPKA, HOFFMEISTER &
KISHIYAMA, PC LLO,
Defendants.
Nebraska's dormant mineral statutes, Neb. Rev. Stat. § 57-228 et seq.,
provide that a severed mineral interest shall be considered abandoned if, for
a period of 23 years, its "right of ownership" is not publicly exercised by its
record owner. Ricks v. Vap, 784 N.W.2d 432, 433 (Neb. 2010). If a severed
mineral interest is abandoned, the owner of the surface estate can sue to
terminate the mineral interest. Id.
The issue in this legal malpractice case is whether the plaintiffs would
have succeeded in their state court appeal from a state trial court order
declaring that their mineral interests had been abandoned. The Court finds
that had the defendants properly appealed, the Nebraska appellate courts
would have affirmed the trial court's order. Accordingly, the Court will
dismiss the plaintiffs' complaint.
BACKGROUND
The plaintiffs in this case are the various heirs of Charles Williams, Sr.
and Laverne Davison, who in life had owned mineral interests in certain
Sioux County, Nebraska real estate. Filing 39 at 4-5.1 One of the plaintiffs,
Donald Williams, inherited his mineral interests directly from Charles Sr.
and Davison—his parents—at their deaths, in 1938 and 1981 respectively.
Pursuant to NECivR 56.1, a party moving for summary judgment must include in its brief
a statement of material facts about which the movant contends there is no dispute, and the
party opposing summary judgment must include in its brief a concise response to that
statement of facts, noting any disagreement. Properly referenced material facts in the
movant's statement are considered admitted unless controverted in the opposing party's
response. NECivR 56.1(b)(1).
1

Filing 39 at 5. The other plaintiffs inherited through Donald's sister, Ila
Mullenix, who had inherited from her parents in 1938 and 1981, but died in
2005. Filing 39 at 4-5.
In 2011, Gale Henry filed a state court complaint against Donald, Ila,
and several other individuals, to have their mineral interests declared
abandoned. Filing 38-8 at 2-4. (Ila was deceased by that time, but for reasons
that will become clear below, Gale didn't know that.) Donald answered, and
the remaining plaintiffs in this case—Ila's heirs—intervened. Filing 38-8 at
6-9. The matter progressed to a bench trial. Filing 38-3 at 42. The plaintiffs
were represented by the defendants in the instant case: Joseph Kishiyama
and his law firm of Chaloupka, Holyoke, Snyder, Chaloupka, Hoffmeister &
Kishiyama. Filing 38-3 at 42; filing 39 at 5. The state trial court found that
the plaintiffs' mineral interests had been abandoned. Filing 39 at 5.
Specifically, the trial court rejected the plaintiffs' argument that Henry
could not pursue a claim to terminate the severed mineral interests to the
property because he only held a life estate in the property. Filing 38-5 at 44.
The trial court reasoned that the holder of a life estate is still an "owner . . .
of the surface of real estate" within the meaning of § 57-228. Filing 38-5 at
44-45. The trial court also found that Henry was not required to join all the
other surface owners to bring the claim, because § 57-228 specifically permits
the surface interest owner to prosecute a claim "on behalf of himself and any
other owners of such interest in the surface . . . ." Filing 38-5 at 45. The trial
court found that Ila's heirs were not "record owners" of the mineral interests
because no recorded instrument identified them as such, so they could not—
and had not—publicly exercised ownership of the mineral interests so as to
prevent abandonment. Filing 38-5 at 47-49. And the trial court found that
while Donald was a record owner, he had not publicly exercised his rights
either. Filing 38-5 at 49.
Kishiyama and his firm timely appealed on the plaintiffs' behalf, but
the appellate transcript they ordered did not include a default judgment that
had been entered against other mineral interest owners who had not
answered Henry's complaint. Filing 39 at 5-6. It appeared to the Nebraska
Court of Appeals that the trial court had not ruled on all the claims against
all the parties, so the Court of Appeals entered an order to show cause why
the appeal should not be dismissed for lack of a final, appealable order. Filing
38-7 at 1; filing 39 at 6. Kishiyama did not respond to the show cause order.
Filing 39 at 6. So, the Court of Appeals dismissed the appeal in November
2013. Filing 39 at 6. Kishiyama attempted to perfect another appeal in
August 2015, but his attempts were rebuffed by both the trial court and the
Court of Appeals. Filing 39 at 6; see filing 38-10 at 4-16.

-2-

In the instant case, the plaintiffs are suing Kishiyama and his former
law firm under Nebraska law for legal malpractice—specifically, negligence
in failing to perfect their appeal from the trial court's judgment. Filing 1. In
Nebraska civil legal malpractice actions, a plaintiff alleging attorney
negligence must prove three elements: (1) the attorney's employment, (2) the
attorney's neglect of a reasonable duty, and (3) that such negligence resulted
in and was the proximate cause of loss (damages) to the client. New Tek Mfg.,
Inc. v. Beehner, 702 N.W.2d 336, 346 (Neb. 2005). In such an action, the
plaintiff must show that he or she would have been successful in the
underlying action but for the attorney's negligence. Id.
The parties have cross-moved for summary judgment as to liability,
asking the Court to determine as a matter of law whether the plaintiffs
would have been successful in the underlying state court appeal.2
STANDARD OF REVIEW
Summary judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(a). The movant bears the
initial responsibility of informing the Court of the basis for the motion, and
must identify those portions of the record which the movant believes
demonstrate the absence of a genuine issue of material fact. Torgerson v. City
of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant
does so, the nonmovant must respond by submitting evidentiary materials
that set out specific facts showing that there is a genuine issue for trial. Id.
On a motion for summary judgment, facts must be viewed in the light
most favorable to the nonmoving party only if there is a genuine dispute as to
those facts. Id. Credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the evidence are jury functions, not
those of a judge. Id. But the nonmovant must do more than simply show that
there is some metaphysical doubt as to the material facts. Id. In order to
show that disputed facts are material, the party opposing summary judgment
must cite to the relevant substantive law in identifying facts that might
affect the outcome of the suit. Quinn v. St. Louis County, 653 F.3d 745, 751
(8th Cir. 2011). The mere existence of a scintilla of evidence in support of the
nonmovant's position will be insufficient; there must be evidence on which
the jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver
Training, LLC, 656 F.3d 782, 791-92 (8th Cir. 2011). Where the record taken

To make sure the record is clear: while the parties have filed cross-motions for summary
judgment, the "lead motion" is the plaintiffs', which the parties have fully briefed.
2

-3-

as a whole could not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial. Torgerson, 643 F.3d at 1042.
DISCUSSION
The plaintiffs argue that they would have been successful on appeal by
asserting six assignments of error:
Error 1:
Error 2:
Error 3:
Error 4:

Error 5:

Error 6:

The Trial Court Decided the Case Without
Jurisdiction Because the Underlying Plaintiff Lacked
Standing to Sue.
The Trial Court Decided the Case Without All
Necessary Parties Present. This was a Jurisdictional
Flaw.
The District Court Failed to Appreciate [Ila's heirs]
Had 23 Years from Their Mother's Death to Act.
The District Court Erred When It Failed to Recognize
that the Interests of [Donald] Acquired before 1968
Were Not Subject to the Abandoned Mineral
Interests Statute Enacted In 1967.
The District Court Erred When It Failed to Recognize
that the Interests [Ila] Acquired Before 1968 Were
Not Subject to the Abandoned Mineral Interests
Statute Enacted In 1967.
Neb Rev Stat § 57-229 Derogates the Common Law.
The District Court Erred in When It Failed to Strictly
Construe the Statute.

Filing 39 at 4. The Court will consider each of the plaintiffs' assignments of
error in turn.
STANDING
The plaintiffs' standing argument is essentially a recasting of their
argument to the trial court that Henry, seised of a life estate, could not bring
an action under the dormant mineral statutes.
Section 57-228 provides that "[a]ny owner or owners of the surface of
real estate from which a mineral interest has been severed, on behalf of
himself and any other owners of such interest in the surface, may sue" to
have a severed mineral interest terminated. The plaintiffs' first argument is
that the owner of a life estate does not have a surface interest "from which a
mineral interest has been severed." Filing 39 at 17. This, the plaintiffs say, is
because "[t]he mere owner of a life estate, with no remainder interest, is the
owner of a severed interest himself—the life estate being severed from the
-4-

remainder interest" and "fee title to mineral interests cannot merge in a
fractional life estate interest in surface rights." Filing 39 at 17.
This is, to start with, too narrow a view of a life estate: it is wellestablished that a life estate can include mineral interests. See, Weekley v.
Weekley, 27 S.E.2d 591, 593 (W. Va. 1943); In re Estate of Womack, 372 P.3d
690, 694 (Utah Ct. App. 2016) (collecting authorities). But more
fundamentally, the Court is unpersuaded that the doctrine of merger of
estate somehow precludes application of the dormant mineral statutes.
The doctrine of merger's general rule is that where two unequal estates
vest in the same person at the same time without an intervening estate, the
smaller is merged into the greater. Landmark Enters., Inc. v. M.I. Harrisburg
Assocs., 554 N.W.2d 119, 124 (Neb. 1996). The plaintiffs argue that because
the mineral interest is the "greater" interest for these purposes—a fee simple
estate—it cannot merge into the "lesser" life estate. Filing 39 at 17-18.
Merger, as applied in the context of mineral estates, is actually a
complicated and uncertain area of law: there is a split of authority on
whether, and under what circumstances, a surface estate and a mineral
estate can merge. See Medicine Lodge Invs., L.L.C. v. EAR, Inc., 197 P.3d
502, 509 n.13 (Okla. 2008) (collecting cases). As a general matter, division of
the surface and mineral rights creates two estates, "which are as distinct as if
they contained two parcels of land." Slaaten v. Cliff's Drilling Co., 748 F.2d
1275, 1277 (8th Cir. 1984); see Clay v. Mountain Valley Mineral P'ship, 351
P.3d 961, 971 (Wyo. 2015). And furthermore, as a general matter, a surface
estate is subservient to a mineral estate. See, Slaaten, 748 F.2d at 1277;
Entek GRB, LLC v. Stull Ranches, LLC, 885 F. Supp. 2d 1082, 1088 (D. Colo.
2012). As a result, it has been held that the lesser surface estate merges into
the dominant mineral estate. Hunter v. Rosebud Cty., 783 P.2d 927, 929
(Mont. 1989). But it has also been held, to the contrary, that merger "applies
to estates in land into which the original estate in fee simple may have been
divided, as an estate for years or for life, and not to the different divisions of a
tract of land, whether these divisions are horizontal or vertical." HumphreysMexia Co. v. Gammon, 254 S.W. 296, 301 (Tex. 1923). So, when surface rights
and mineral rights are both held in fee, there cannot be merger. See id.
But the Court need not fully resolve those thorny issues to reach a
more basic conclusion: the Nebraska dormant mineral statutes do not depend
on merger. They simply provide that if the trial court finds that a severed
mineral interest has been abandoned, "it shall enter judgment terminating
and extinguishing it, canceling it of record, and vesting the title thereto in the
owner or owners of the interest in the surface from which it was originally
severed in the proportions in which they own such interest in the surface." §

-5-

57-230. Nothing about vesting title in the surface interest owners requires
that their interests be merged.
It is, in fact, well-established that "in equity, the common law legal rule
as to merger is not always followed, and the doctrine of merger is not
favored." Waite Lumber Co. v. Masid Bros., Inc., 200 N.W.2d 119, 122 (Neb.
1972). Merger does not always or necessarily result from a coinciding of two
unequal estates. Landmark Enters., 554 N.W.2d at 889-90. Whether merger
occurs depends on the intention of the party acquiring the two estates, and
"[i]t will be presumed, in the absence of circumstances indicating a contrary
purpose, that he intended to do that which would prove most advantageous to
himself." Am. Sav. & Loan Ass'n v. Barry, 243 N.W. 628, 630-31 (Neb. 1932).
In other words, if a party owns two estates in land, and merger is not
intended or would be disadvantageous, then the result is not that conveyance
of the estate is defeated—the result is simply that the party continues to own
two separate estates. See Wyatt-Bullard Lumber Co. v. Bourke, 75 N.W. 241,
241-42 (Neb. 1898). The plaintiffs' contention that Henry "sued to have
abandoned mineral interest merged into his life estate," filing 39 at 18, is
simply not supported by the statutory scheme. It is entirely possible,
pursuant to § 57-230, to vest title to the severed mineral interest in the
surface owners without relying on the doctrine of merger.
Because the plaintiffs are incorrect in contending that the doctrine of
merger precludes awarding a mineral interest to the owner of a life estate, 3
there is no basis for their conclusion that Henry lacked standing to pursue
his claim. Their first assignment of error is without merit.
NECESSARY PARTIES
Next, the plaintiffs argue that the trial court lacked jurisdiction
because of a failure to join necessary parties. Filing 39 at 18. This is, they
say, because Henry did not join others with surface interests as parties.
Filing 39 at 19-20.
To begin with, the Court presumes that the plaintiffs mean that the
other surface owners were indispensable parties, rather than necessary
parties. The Nebraska Supreme Court recently explained the difference:
Necessary parties are parties who have an interest in the
controversy, and should ordinarily be joined unless their interests
are separable so that the court can, without injustice, proceed in
their absence. Indispensable parties are parties whose interest is
What it means to vest such an interest to the surface owners "in the proportions in which
they own such interest in the surface[,]" see § 57-230, in the context of a life estate, is a
question the Court need not address.
3

-6-

such that a final decree cannot be entered without affecting
them, or that termination of controversy in their absence would
be inconsistent with equity. The inclusion of a necessary party is
within the trial court's discretion. However, there is no discretion
as to the inclusion of an indispensable party.
Midwest Renewable Energy, LLC v. Am. Eng'g Testing, Inc., 296 Neb. 73, 90
(2017). An indispensable party is one who not only has an interest in the
subject matter of the controversy, but who has an interest of such a nature
that a final determination cannot be made without affecting his rights, or
leaving the controversy in such condition that the final determination may be
wholly inconsistent with equity and good conscience. James J. Parks Co. v.
Lakin, 292 N.W.2d 21, 24-25 (Neb. 1980). The question is whether a
determination of the controversy cannot be had without the presence of other
parties. See Midwest Renewable Energy, 296 Neb. at 90 (citing Neb. Rev.
Stat. § 25-323).
But the plaintiffs' argument that the other surface owners were
indispensable runs squarely into the language of § 57-228, which expressly
permits a surface owner to sue "on behalf of himself and any other owners of
such interest in the surface[.]" (Emphasis supplied.) The plaintiffs' contention
that the other surface owners are indispensable would render that part of §
57-228 meaningless, contrary to the well-established proposition that it is not
within the province of the courts to read a meaning into a statute that is not
there or to read anything direct and plain out of a statute. Stewart v.
Nebraska Dep't of Revenue, 885 N.W.2d 723, 728 (Neb. 2016). A court must
attempt to give effect to all parts of a statute, and if it can be avoided, no
word, clause, or sentence will be rejected as superfluous or meaningless. First
Nebraska Educators Credit Union v. U.S. Bancorp, 877 N.W.2d 578, 582
(Neb. 2016). Furthermore, while the doctrine of compulsory joinder is codified
in Nebraska by § 25-323, § 57-228, as the more specific statute, is controlling.
See Sydow v. City of Grand Island, 639 N.W.2d 913, 920 (Neb. 2002).4
And more generally, when construing a statute, an appellate court
must look to the statute's purpose and give to the statute a reasonable
construction which best achieves that purpose, rather than a construction
which would defeat it. Cisneros v. Graham, 881 N.W.2d 878, 886 (Neb. 2016).
In general, dormant mineral statutes were enacted to address
title problems that developed after mineral estates were

The plaintiffs' citation to the quiet title statute, Neb. Rev. Stat. § 25-13,113, is subject to
the same principle.
4

-7-

fractured. At common law, mineral interests could not be
abandoned. Permanent or long-term mineral interests could be
created during a period of activity in a particular industry, and
those interests did not terminate when the activity ceased. As a
result, the mineral estate could be held by owners who had long
since disappeared from the area, leaving no trace. When the
record owner of severed mineral interests could not be contacted,
the dormant interests could cloud the titles of surface owners and
hinder further development of the mineral estates. The
Legislature sought to remedy some of those problems by enacting
statutes to reunite dormant mineral estates with surface owners.
Rice v. Bixler, 854 N.W.2d 565, 572 (Neb. 2014). It would hardly be consistent
with that purpose to permit fractured estates to defeat application of the
statutory scheme by requiring every owner of a fractured surface estate to be
made a party.
Consistent with that reading of the statute, the Court concludes that
other surface owners are necessary but not indispensable parties. See
Midwest Renewable Energy, 296 Neb. at 90. Because their interest in the
controversy is such that they only stand to benefit from disposition of the
case—that is, they have no rights to be lost as a consequence of the decree—
then it is possible to enter a final decree without affecting them. See id. They
are interested in the mineral rights, but have no mineral rights to lose, so
they are necessary but not indispensable. See id.
Because the other surface owners were not indispensable parties, their
absence did not deprive the trial court of jurisdiction.
STARTING DATE ON STATUTORY PERIOD
Next, the plaintiffs argue that under the statutory scheme, Ila's heirs
had 23 years to act from the date of Ila's death in 2005. But their argument is
contrary to the statutory scheme, which provides that "[a] severed mineral
interest shall be abandoned unless the record owner of such mineral interest
has within the twenty-three years immediately prior to the filing of the action
provided for in sections 57-228 to 57-231, exercised publicly the right of
ownership . . . ." § 57-229. The question is whether the plaintiffs were not just
the owners, but the record owners of the mineral rights.
The Nebraska Supreme Court's decision in Gibbs Cattle Co. v. Bixler is
instructive. 831 N.W.2d 696 (Neb. 2013). In Gibbs, the surface owner sued a
mineral right owner who, it turned out, had died about 15 years earlier. Id. at
698. The decedent's wife appeared and contended that she had become the
"record owner" of the mineral estate when the decedent's will, which

-8-

transferred the mineral estate to her, was probated. Id. The question was
which public records may be used to determine who the "record owner" of a
mineral estate is. Id. at 697. The Nebraska Supreme Court explained:
[The surface owner] argues that the "record owner" of mineral
interests may be determined only from the register of deeds in
the county where the interests are located. [The decedent's wife]
disagrees. She argues that the "record owner" may also be
determined from other public records, and in this case, Sioux
County's probate records. If [the surface owner] is correct, then
the record owner of the mineral interests was [the decedent], who
did not publicly exercise his ownership rights in the 23 years
before [the surface owner] filed its complaint. As such, the
interests would be abandoned and title to them would vest with
[the surface owner]. But if [the decedent's wife] is correct, then
she became the record owner in 1996, when [the decedent] died
and his interests passed to her through his will. If that is the
case, then [the decedent's wife] could not have abandoned her
interests, because 23 years had not yet passed from her
acquisition of the interests.
Id. at 700-01. The court concluded that probate records were fair game for
determining the "record owner," so the decedent's wife was the record owner
and had not abandoned the mineral estate. Id. at 703.
But the opposite proved true in Rice, 854 N.W.2d 565. Two of the
mineral interest owners in that case had inherited Sioux County mineral
rights from their mother, whose will had been probated in Alabama in 1993.
Id. at 569. They recorded "verified claim[s] of interest" in Sioux County, see §
57-229(3), before the surface estate owner commenced his action to recover
the mineral estate. Rice, 854 N.W.2d at 568-70. But the Nebraska Supreme
Court rejected their claims that they had exercised the mineral rights,
explaining that the record owner of the mineral rights at issue was still their
mother. Id. at 574.
There is no evidence that the [mineral estate owners] have
filed anything in the records of Sioux County that would prove
they are the record owners of the mineral interests located in
Sioux County. They claim through the last will and testament of
their mother . . . . But the record before us presents nothing in
the public records of Sioux County that establishes that her
interests were transferred to them.

-9-

It is true that after the case at bar was commenced, the
[mineral estate owners] offered certified copies of their mother's
will and letters testamentary filed in Mobile County, Alabama.
The [mineral estate owners] were required to establish
themselves as the record owners before the action was
commenced. The plain language of § 57-229 provides that the
record owner of such mineral interest has 23 years immediately
prior to the filing of the actions provided for in the dormant
mineral statutes to exercise publicly the right of ownership. The
record does not reflect that the Alabama probate documents
through which the [mineral estate owners] claim mineral
interests were ever recorded in the office of the Sioux County
clerk/register of deeds or filed in the probate records of that
county before [the surface owner] commenced this action.
The [mineral estate owners] have not established within
the time required by § 57-229 that they are the record owners of
the mineral interests in question. Therefore, they have
abandoned such interests.
Rice, 854 N.W.2d at 574-75.
Rice, not Gibbs, is apposite here. A "record owner" is a property owner
in whose name the title appears in the public records in the county where the
interests are located. See Rice, 854 N.W.2d at 573. No such evidence was
presented to the trial court to establish record ownership for Ila's heirs.
Accordingly, pursuant to Rice, Ila was still the record owner, and her heirs
abandoned their interests. The trial court's ruling was correct.
RETROACTIVITY
The plaintiffs' fourth and fifth assignments of error present the same
basic issue: whether the dormant mineral statutes can be applied
"retroactively"—and what, exactly, "retroactive" means in this context.
Necessary background for this issue is the Nebraska Supreme Court's
decision in Wheelock v. Heath, 272 N.W.2d 768 (Neb. 1978). The dormant
mineral statutes were enacted and took effect in 1967. Id. at 769. The surface
owners in that case sought to terminate mineral rights that had not been
exercised for 23 years before the filing of the action, but less than 23 years
after the statutes became effective. Id. at 771. The Nebraska Supreme Court
held that the mineral estate owners had been denied due process, explaining:
In the case before us, the statute deprives known property
owners of their subsurface rights without notice, hearing, or

- 10 -

compensation. The statute was passed in 1967. It declared the
mineral rights shall have been abandoned unless the record
owner had publicly exercised ownership rights, as defined in the
statute, within 23 years immediately prior to the filing of an
action to cancel the severed mineral interest of record. No notice
of any nature was given to the record owner of a mineral interest.
A limited statute of limitations was provided. In any action
filed within 2 years after October 23, 1967, the owner of a severed
mineral interest could enter an appearance and assert his
interest. He would then be deemed to have timely and publicly
exercised his right of ownership. In other words, the record title
owners were required within 2 years from October 23, 1967, to
take some affirmative action or lose their property. In all actions
filed after October 23, 1969, if no affirmative action had been
taken within 23 years, the severed interest is to be considered
abandoned. The owner does not have any remedy. The statute,
insofar as it attempts to operate retroactively, is unconstitutional
as violative of the due process and contract clauses of the United
States and the Nebraska Constitutions.
Id. at 773-74. In their fourth assignment of error, the plaintiffs argue that
Wheelock precludes terminating Donald's interest that he inherited in 1938.
Filing 39 at 22-24. In their fifth assignment of error, the plaintiffs argue that
Wheelock precludes terminating the interest Ila acquired in 1938 as it passed
to her heirs. Filing 39 at 24. The Court disagrees.
To begin with, it is extremely unlikely that Wheelock survived the U.S.
Supreme Court's subsequent decision to the contrary in Texaco, Inc. v. Short,
454 U.S. 516 (1982).5 See Peterson v. Sanders, 806 N.W.2d 566, 569 (Neb.
2011). (In fact, the Texaco Court specifically called out Wheelock as being
contrary to the Indiana Supreme Court decision that the Texaco Court
affirmed. Texaco, 454 U.S. at 526 n.16.)

Although Wheelock was premised on both the Nebraska and United States Constitutions,
the Nebraska Supreme Court has repeatedly said that the parameters of the state and
federal due process clauses are similar or coextensive. See, State v. Thomas, 685 N.W.2d 69,
78 (Neb. 2004); State v. Ryan, 601 N.W.2d 473, 488 (Neb. 1999); see also, e.g., State v.
Hinrichsen, 877 N.W.2d 211, 222 (Neb. 2016); State v. Nelson, 807 N.W.2d 769, 784 (Neb.
2011); Scofield v. State, Dep't of Nat. Res., 753 N.W.2d 345, 356 (Neb. 2008); Kenley v. Neth,
712 N.W.2d 251, 258 (Neb.), opinion modified and supplemented, 716 N.W.2d 44 (Neb.
2006); Hass v. Neth, 657 N.W.2d 11, 19 (Neb. 2003); State v. Davlin, 639 N.W.2d 631, 647
(Neb. 2002); Marshall v. Wimes, 626 N.W.2d 229, 234 (Neb. 2001).
5

- 11 -

But even assuming Wheelock retains some vitality, the Court finds no
Wheelock violation here, because both Donald and Ila had a full 23 years after
the enactment of the dormant mineral statutes to exercise their rights. While
Wheelock clearly precludes extending the 23-year statutory period back
before the statutes were enacted, the Court does not read Wheelock as
precluding abandonment of a mineral estate that was created and last
conveyed before 1967, so long as the owner had the full 23-year period in
which to exercise his rights.
In sum, the Court has little doubt that if forced to decide the question,
the Nebraska Supreme Court would find that Wheelock was abrogated by
Texaco. See Peterson, 806 N.W.2d at 569. The Court has even less doubt that
the Nebraska Supreme Court would decline to extend Wheelock to prevent
abandonment of any mineral interest that was created and last conveyed
before the dormant mineral statutes became effective.
For those reasons, the Court finds no merit to the plaintiffs' fourth and
fifth assignments of error: while Donald and Ila acquired interests in 1938
before the dormant mineral statutes were enacted, they had over 23 years
after 1967 to act on those interests, and due process was not violated by
deeming those interests abandoned.6
CONSTRUCTION OF DORMANT MINERAL STATUTES
The plaintiffs' final assignment of error is that the trial court erred by
failing to construe the dormant mineral statutes strictly. They note that a
statute in derogation of common law is to be strictly construed, e.g., ML
Manager, LLC v. Jensen, 842 N.W.2d 566, 571 (Neb. 2014), and contend that
the trial court made "a doctrinal-level reversible error[,]" filing 39 at 25.
It is worth noting that the Nebraska Supreme Court was invited to
apply that proposition to the dormant mineral statutes, but did not find that
interpretive canon "helpful." Gibbs, 831 N.W.2d at 703; see also Fisher v.
Heirs & Devisees of T.D. Lovercheck, 864 N.W.2d 212, 217 (Neb. 2015). But
regardless, the plaintiffs' support for their "doctrinal-level" error is limited to
the other errors they allege. Their argument does not specifically narrow
their general assignment of error, but see State ex rel. Wagner v. Gilbane
Bldg. Co., 757 N.W.2d 194, 199 (Neb. 2008), and it raises no issue separate
from the others. Having found no merit to the plaintiffs' other assignments of
error, the Court rejects this one as well.

To the extent that the plaintiffs are suggesting that a pre-1967 mineral estate can never
be abandoned, even if subsequently transferred, that argument is squarely foreclosed by
Peterson, 806 N.W.2d at 571.
6

- 12 -

CONCLUSION
The Court finds no merit to the plaintiffs' proposed assignments of
error. Accordingly, the Court concludes that their appeal to the Nebraska
appellate courts, had it been perfected, would have resulted in affirmance of
the trial court's order. The Court will, therefore, grant summary judgment in
favor of the defendants.
IT IS ORDERED:
1.

The plaintiffs' motion for summary judgment (filing 37) is
denied.

2.

Chaloupka, Holyoke, Snyder, Chaloupka, Hoffmeister &
Kishiyama's motion for summary judgment (filing 34) is
granted.

3.

Kishiyama's motion to join (filing 40) is granted.

4.

The plaintiffs' complaint is dismissed as to all defendants.

5.

A separate judgment will be entered.

Dated this 29th day of March, 2017.
BY THE COURT:

John M. Gerrard
United States District Judge

- 13 -