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Duncan Oil, Inc. v. State of Louisiana Mineral and Energy Board

Court of Appeals of Louisiana, Third Circuit

April 20, 2017

DUNCAN OIL, INC.
v.
STATE OF LOUISIANA MINERAL AND ENERGY BOARD, ET AL.

         APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2014-4513 HONORABLE ROBERT L. WYATT, DISTRICT JUDGE.

          Charles Schrumpf, Schrumpf Law Office, APLC COUNSEL FOR DEFENDANT/APPELLEE: Anthony Joseph Palermo, Sr.

          Van C. Seneca Van C. Seneca, L.L.C. COUNSEL FOR DEFENDANT/APPELLEE: Clark Real Estate Enterprises, Inc.

          Jeff Landry Attorney General for the State of Louisiana Harry J. Vorhoff, Ryan M. Seidemann, Michael S. Heier Assistant Attorneys General COUNSEL FOR DEFENDANT/APPELLANT: The Louisiana State Mineral and Energy Board

          Jamie S. Manuel, Mayhall F. Blaize, Mayhall & Blaize, LLC COUNSEL FOR PLAINTIFF/APPELLEE: Duncan Oil, Inc.

          Court composed of D. Kent Savoie, Van H. Kyzar, and David E. Chatelain, Judges.

          DAVID E. CHATELAIN[*] JUDGE.

         In this concursus proceeding, the Louisiana State Mineral and Energy Board (State) appeals the trial court's grant of summary judgment, declaring ownership of the disputed property in favor of the defendants, Anthony Joseph Palermo, Sr. (Palermo) and Clark Real Estate Enterprises, Inc. (Clark). Additionally, the State appeals the trial court's denial of its motion for summary judgment. For the following reasons, we affirm.

         FACTS AND PROCEDURAL HISTORY

         The issue in this concursus proceeding arises out of a title dispute with respect to certain immovable property, comprising twenty acres, located in Calcasieu Parish, Louisiana, more particularly described as the West Half of the Northwest Quarter of the Northeast Quarter of Section 17, Township 9 South, Range 10 West (disputed property). A portion of the disputed property is located within the geographical boundaries of the HBY RC SUA and its Unit Tract 2, which Duncan Oil, Inc. (Duncan) operates. Duncan executed oil, gas, and mineral leases with Palermo, Clark, and the State covering their interest, whatever it may be, in the disputed property.[1]

         On November 7, 2014, Duncan filed its Petition for Concursus in which it sought to deposit into the registry of the court "the revenue from production attributable to Unit Tract 2 and to allow the defendants to assert their claims thereto and as to the ownership of the Subject Property in this proceeding." Made defendants were Palermo, Clark, and the State.

         In its petition, Duncan explained the State's claim to ownership arises from an adjudication to the State for non-payment of 1924 taxes pursuant to a tax sale dated July 27, 1925. The adjudication specifically referenced the property subject to the tax sale as "W2 of NW4 NE of N.W. NE /and S2 of E2 of S2 NW4 of NE containing 25 acres Lots 1 to 1030 Inc in the same Section Township & Range." The petition also set forth Clark's and Palermo's claims of ownership through a redemption dated November 1, 1983, which described the redeemed property as "S ½ of E ½ of S ½ N.W. ¼ NE containing 25 acres Lots 1 to 1030 inc in same Section Township & Range." Based on this flawed description, the petition noted that the State has taken the position that the redemption failed to redeem the disputed property, and therefore, the property has "neither been redeemed nor cancelled nor sold out of the State's possession." Palermo and Clark dispute that position and additionally claim title to the property through a tax sale recorded on May 15, 1984, in which the property described as the "W/2 N.W. NE 17.9.10" was sold to Billy W. Clark, their ancestor in title.

         Thereafter, the State moved for summary judgment, arguing there is no genuine issue of fact that certain acreages adjudicated to the State in 1925 were never validly redeemed, and thus, the disputed property is still owned by the State. In response, Palermo, joined by Clark, filed a cross-motion for summary judgment, arguing ownership of the disputed property was transferred to Clark through the 1983 redemption and the subsequent 1984 tax sale.

         On August 4, 2016, the trial court held its hearing on the cross-motions for summary judgment. In support of its motion, the State submitted the affidavit of Spencer Robinson, the Administrator of the Louisiana State Land Office, certifying the copies of the following records:

(1) An excerpt from "Sales of Property to the State for Taxes 1924" containing "Process Verbal No. 22" in which the relevant property is named and described as:
W2 NW4 NE of N.W. NE /and S2 of E2 of S2 NW4 NE containing 25 acre Lots 1 to 1030 Inc in same Section Township & Range
and setting forth the total amount of taxes due at $24.09;[2]
(2) Request for and Certification of Redemption regarding the disputed property describing the property sought for redemption as:
S ½ of E ½ of S ½ N.W. ¼ NE containing 25 acres Lots 1 to 1030 inc in same Section Township & Range
and dated October 26, 1983, and November 1, 1983, respectively;
(3) Statement of Tax Due for Redemption amounting to $10.15 on the property described as:
S ½ of E ½ of S ½ N.W. ¼ NE containing 25 acres Lots 1 to 1030 inc in same Section Township & Range[;]
(4) Emails between Cindy Wright, Calcasieu Parish Deputy Tax Collector, and Faith LeRoy, State Public Lands Analyst, from August 2013, opining that, based on the parish records, the property was still adjudicated and never redeemed;
(5) Quit Claim Deed between Clark and Frank E. Poe, transferring title to "NW ¼ of NE ¼ 17-9-10" from Poe to Clark on March 9, 1984.

         Palermo and Clark, in support of their motion, submitted various records tracing the description, ownership, and tax records of the disputed property from 1921 to 2014:

(1) Deed from Calcasieu Sulphur & Oil Co. to Whitford Mineral Co. Inc. describing ...

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