United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard, United States District Judge
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
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.
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. 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. 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.
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
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
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.
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.
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.
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.
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 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.
plaintiffs argue that they would have been successful on
appeal by asserting six assignments of error:
Error 1: The Trial Court Decided the Case Without
Jurisdiction Because the Underlying Plaintiff Lacked Standing
Error 2: The Trial Court Decided the Case Without All
Necessary Parties Present. This was a Jurisdictional Flaw.
Error 3: The District Court Failed to Appreciate [Ila's
heirs] Had 23 Years from Their Mother's Death to Act.
Error 4: 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
Error 5: 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
Error 6: 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.
plaintiffs' standing argument is essentially a recasting
of their argument to the trial court that Henry, seised of a
life estate, could not ...