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Fisher v. Heirs & Devisees of T.D. Lovercheck

Supreme Court of Nebraska

June 5, 2015

DAVID FISHER AND PAMELA W. FISHER, HUSBAND AND WIFE, AND DAVID FISHER AND PAMELA W. FISHER, TRUSTEES, APPELLANTS,
v.
THE HEIRS AND DEVISEES OF T.D. LOVERCHECK ET AL., APPELLEES

Appeal from the District Court for Banner County: DEREK C. WEIMER, Judge.

Philip M. Kelly and Jerald L. Ostdiek, of Douglas, Kelly, Ostdiek & Ossian, P.C., for appellants.

Leslie A. Shaver and John F. Simmons, of Simmons Olsen Law Firm, P.C., for appellees.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MILLER-LERMAN, and CASSEL, JJ. MCCORMACK, J., participating on briefs.

OPINION

Page 213

[291 Neb. 10] Connolly, J.

SUMMARY

David Fisher and Pamela W. Fisher sued, among others, U.S. Bank National Association (U.S. Bank) to terminate severed mineral interests. The Fishers filed their complaint as " Husband and Wife" and alleged that they had owned the land since 1986. In its answer, U.S. Bank noted that in 2001, the Fishers conveyed the land to themselves as trustees for the David and Pamela Fisher Living Trust. Thus, U.S. Bank argued that the Fishers, as husband and wife, were not the real parties in interest.

Before the Fishers filed an amended complaint adding themselves in their capacity as trustees as plaintiffs, U.S. Bank recorded a verified claim of mineral interest. Because U.S. Bank did not otherwise publicly exercise its right of ownership, whether it recorded a claim of interest before the Fishers commenced the action was the decisive issue. The court held that the amended complaint did not relate back to the original complaint and sustained U.S. Bank's motion for summary judgment. As a matter of first impression, we conclude that the amended complaint relates back under Neb. Rev. Stat. § 25-301 (Reissue 2008) because it joined the real parties in interest. We reverse, and remand with directions.

BACKGROUND

In 1986, " DAVID FISHER and PAMELA W. FISHER, husband and wife," received by warranty deed 400 acres in Banner County, Nebraska, as joint tenants. In 2001, the Fishers quitclaimed the land to " DAVID FISHER and PAMELA W. FISHER, TRUSTEES OF THE DAVID AND PAMELA FISHER LIVING TRUST." David and Pamela Fisher are the initial trustees and beneficiaries of the trust.

US Bank is the trustee of the L.T. Lovercheck Trust. U.S. Bank claims that the corpus of the Lovercheck trust includes an undivided one-quarter interest in the minerals produced on the land in question.

[291 Neb. 11] The parties generally agree that the mineral estate has not been active. David averred that since he and Pamela acquired the land in 1986, no well drilling occurred and no mineral leases were executed. U.S. Bank admitted that, to its knowledge, no drilling activity occurred on the land and that it had not filed a claim of interest before this litigation.

Page 214

On March 4, 2013, " DAVID FISHER and PAMELA W. FISHER, Husband and Wife," filed a complaint to terminate severed mineral interests. The defendants included U.S. Bank as the trustee of the Lovercheck trust. To succeed, the Fishers had to prove three negatives. Generally, they had to show that the record owners of the severed mineral interests did not, in the 23 years before the Fishers filed suit, publicly exercise their ownership rights by (1) transferring, leasing, or encumbering their interest; (2) drilling for or removing minerals; or (3) recording a verified claim of interest.[1]

On May 2, 2013, U.S. Bank filed an answer alleging that the Fishers did not bring suit in the name of the real party in interest, i.e., the trustees of their trust. On the same day, U.S. Bank recorded a verified claim of mineral interest. On May 29, U.S. Bank filed another claim of interest to " further clarify the ownership of title."

On June 14, 2013, the Fishers moved for leave to file an amended complaint. The court sustained their motion, and the Fishers filed an amended complaint that added " DAVID FISHER and PAMELA W. FISHER, Trustees," as plaintiffs. The amended complaint did not change the substance of the Fishers' claims. In its answer to the amended complaint, U.S. Bank alleged ...


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