October 16, 2014 – T.H. MCELVAIN OIL & GAS LIMITED PARTNERSHIP No. 32,666

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: October 16, 2014
NO. 32,666
T.H. MCELVAIN OIL & GAS LIMITED PARTNERSHIP,
a New Mexico limited partnership; KAREN ANN HANDLEY
ANDERSON, an individual; SUSAN R. HANDLEY MCGREW,
an individual; BILLIE L. PHILLIPS, an individual; BILLIE L.
PHILLIPS RECOVERABLE TRUST DATED APRIL 23, 1996,
BILLIE L. PHILLIPS TRUSTEE, JUDY LYNN QUINT, an
individual; RONALD CHARLES WEEBER, an individual;
LUCILE ALICE NORTHCOTE TRUST DATED MAY 29, 1996,
BILLIE L. PHILLIPS, SUCCESSOR TRUSTEE,
Plaintiffs-Appellants,
v.
GROUP I: BENSON-MONTIN-GREER DRILLING CORP., INC.,
a Delaware corporation; ELIZABETH JEANNE TURNER CALLOWAY,
an individual; KELLY R. KINNEY, an individual; KATHERINE P.
MILLER, an individual; RONALD MICHAEL MILLER, an individual;
VICKIE ROANN MILLER, an individual; THOMAS R. MILLER, an
individual; FRED E. TURNER, LLC, a Delaware limited liability company;
JOHN LEE TURNER, an individual; LINDA VOITL a/k/a LINDA DAVIS,
an individual; ESTATE OF WILLIAME G. WEBB, deceased, JOHN G.
TAYLOR, independent executor,
GROUP II: CHERYL U. ADAMS, an individual; E’TWILA J. AXTELL, an
individual; BP AMERICA PRODUCTION COMPANY, a Delaware
corporation; COASTAL WATERS PETROLEUM COMPANY, INC., a
Louisiana corporation; ENERGEN RESOURCES CORPORATION, an
Alabama corporation; THE ESTATE OF ANNE B. LITTLE, FIRST

SECURITY BANK OF NEW MEXICO, as personal representative; LANA
GAY PHILLIPS, an individual; HENRIETTA SCHULTZ, an individual;
THE FRANK AND HENRIETTA SCHULTZ REVOCABLE TRUST DATED
JANUARY 2, 1990, HENRIETTA SCHULTZ TRUSTEE; SCHULTZ
MANAGEMENT LTD., a Texas limited partnership; J. GLENN TURNER,
JR. LLC, a Delaware limited liability company; MARY FRANCES TURNER
JR. TRUST, JP MORGAN CHASE BANK, NA TRUSTEE,
GROUP III: ALL UNKNOWN CLAIMANTS OF INTEREST IN THE
PREMISES ADVERSE TO THE PLAINTIFFS,
Defendants-Appellees.
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
John A. Dean Jr., District Judge
Dufford & Brown, P.C.
Herbert A. Delap
Denver, CO
Cuddy & McCarthy, LLP
John F. McCarthy Jr.
Arturo L. Jaramillo
Santa Fe, NM
for Appellants
Gallegos Law Firm, P.C.
J.E. Gallegos
Michael J. Condon
Santa Fe, NM
Briones Law Firm, P.A.
Felix Briones Jr.
Farmington, NM
for Appellees Henrietta Schultz, The Frank and Henrietta Schultz Revocable Trust,
Henrietta Schultz Trustee, Schultz Management Ltd., Elizabeth Jeanne Turner

Calloway, Fred E. Turner, LLC, John Lee Turner, J. Glenn Turner, Jr. LLC, Mary
Frances Turner Jr. Trust, JP Morgan Chase Bank, N.A. Trustee, and Benson-
Montin-Greer Drilling Corp., Inc.
Miller Stratvert P.A.
Dylan O’Reilly
William T. Denning
Farmington, NM
for Appellees E’Twila J. Axtell, Lana Gay Phillips, and Cheryl U. Adams

OPINION
SUTIN, Judge.
{1} 	This case presents a difficult issue of whether constructive notice of an action
to quiet title to property, including underlying oil and gas interests located in San Juan
County, New Mexico, was effective. Title was quieted in 1948 to property in which
the oil and gas interests had been reserved by the grantors of the property in a 1928
warranty deed. Presumably unbeknownst to the grantors who had reserved their oil
and gas interests, the decree quieted title to those oil and gas interests in favor of the
quiet title plaintiff whose title clearly stemmed from a warranty deed that contained
the reservation.
{2} 	Evidence indicated that the quiet title plaintiff knew or should have known in
1948 that the grantors who reserved the oil and gas interests resided in San Diego,
California at the time of the 1928 deed. Evidence also indicated that upon inquiry in
San Diego, the quiet title plaintiff may have been able to locate the grantors. Yet,
service of process was obtained solely through constructive notice published in a local
San Juan County newspaper with no attempt shown in the record to discover the
location of those grantors for personal service or to otherwise give notice of the action
to those grantors.

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{3} 	In 2002 a group searching for locations to pursue oil and gas exploration
discovered, by examining the chain of title to the property, that the oil and gas
interests had been reserved by the 1928 warranty deed before the 1948 quiet title
action. Based on that discovery, the group was able to locate heirs (the Wilson heirs)
to the reserved interests with the result that Plaintiffs sued the heirs of the quiet title
plaintiff’s purchasers to establish the Wilson heirs’ ownership rights in the reserved
oil and gas interests. From an unfavorable district court summary judgment, Plaintiffs
appeal, 	contending 	that 	the 	constructive 	notice 	was 	not 	effective 	to 	permit
adjudication of their reserved interests and thus violated due process. We conclude
that the Millers failed to undertake a good faith effort to provide the Wilson heirs
adequate notice of their 1948 quiet title suit. We, therefore, reverse the district court’s
grant of summary judgment to Defendants and remand for further proceedings.
BACKGROUND
{4} 	Plaintiff T.H. McElvain Oil & Gas Limited Partnership (McElvain) entered into
a mineral lease agreement in 2002 with the Wilson heirs, specifically, Judy Lynn
Quint and Ronald Charles Weeber, pertaining to the mineral interests associated with
160 acres of property in San Juan County (the property). Ms. Quint, Mr. Weeber, and
a number of other individuals, are heirs of one of the original grantors, Mabel G.
Wilson (later known by her married name, Weeber). Mabel Weeber, who, along with

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her mother and father, Eva C. Wilson and Judson Wilson (the Wilsons), sold the
property to David Miller in 1928, reserving in their warranty deed to David Miller the
“oil and gas existing or found” on the property. McElvain and the Wilson heirs are
Plaintiffs in the present case.
{5} 	The property consists of 160 acres lying beneath the surface of Navajo Lake in
San Juan County. In 1927 the Wilsons, as joint tenants, acquired a general warranty
deed to the property from W.W. McEwen. 	The 1927 deed from McEwen to the
Wilsons listed “Judson Wilson and Eva C. Wilson and Mabel G. Wilson of San
Diego, California” as purchasers of the property. When the Wilsons conveyed the
property to David Miller in 1928, the warranty deed contained the following express
exception and reservation:
excepting and reserving to the grantors herein the oil and gas existing or
found therein, with the right to enter on for prospecting or developing
same, provided they must pay all damage to land or crops in prospecting
or development.
The deed from the Wilsons to David Miller was recorded in San Juan County in 1928.
{6} 	By a 1931 quitclaim deed, David Miller conveyed his interest in the property
to his brother, Thomas Miller, who had paid one-half of the purchase price for the
property at the time that David Miller purchased it from the Wilsons. The quit claim
deed executed by David Miller, in which he conveyed his interest in the property to
Thomas Miller was recorded in 1937, four days after David Miller’s death. By a 1948

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quiet title action in the San Juan County district court, Thomas Miller was adjudged
to be the fee simple owner of the property.
{7} 	The numerous named Defendants in the present case were the various lessees
and lessors of the mineral interests in the property whose interests stemmed from
Thomas Miller’s fee simple ownership in the property. The district court appointed
a special master “to assist . . . in determining the ownership of the mineral rights[.]”
The following background is based on the special master’s statement of undisputed
facts.
{8} 	Judson Wilson died in 1929, and Eva Wilson died in 1944. By the time that
Eva Wilson died, Mabel Wilson had married and changed her name to Mabel Weeber.
Mabel Weeber, the remaining joint tenant in the 1927 warranty deed to the property,
died in 1970.
{9} 	In October 1948, Miller filed a quiet title action in the district court for San Juan
County alleging, in relevant part, that he was the fee simple owner of the property.
In his complaint to quiet title in the property, Miller named Judson Wilson, Eva
Wilson, and Mabel Wilson, along with other individuals who are not relevant to this
appeal, as defendants “if living, or if deceased, by their unknown heirs.” 	Miller’s
complaint included a sworn statement by Miller’s attorney that, in relevant part, the
Wilsons’ heirs were “unknown to . . . Plaintiff, and Plaintiff [had] been unable to learn

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or determine the names, places of residence, [p]ost [o]ffice addresses[,] and
whereabouts of the . . . unknown heirs[] after diligent search and inquiry[.]”
Additionally, the San Juan County Sheriff submitted a sheriff’s return stating that he
had “diligently searched and inquired for the [Wilsons],” but “after such search and
inquiry, [was] unable to find [them] in San Juan County . . . and [was] unable to find
[their p]ost [o]ffice addresses, places of residence, or whereabouts[.]”
{10} 	Miller served the Wilsons and their heirs (hereinafter, the Wilsons) with notice
of his quiet title action by publication in a Farmington, New Mexico newspaper for
four successive weeks. The Wilsons did not respond to the notice. On December 20,
1948, the district court entered judgment quieting title to the property in favor of
Miller. 	In its judgment, the court determined “that after [a] diligent search and
inquiry[,] the post office addresses, places of residences, and whereabouts of . . . the
[d]efendants” were “unknown”; and, therefore, the defendants could not “be
personally served with process in this cause.” The judgment concluded that Miller
was the owner of the property in fee simple title.
{11} 	In 1950 Miller conveyed the property to V.H. McRee, but reserved three-
fourths of the mineral rights therein. In 1953 Miller and McRee entered into oil, gas,
and mineral leases; as of September 24, 2012, those leases remained in effect. The

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heirs of McRee’s purchasers, who are Defendants in this case, claim royalty interests
from those leases.
{12} 	After Mabel Weeber’s death in 1970, her estate, which was probated in San
Diego, did not identify or include any interest in any New Mexico property. Mabel
Weeber’s husband, Charles Weeber, died in 1978; his estate also did not mention any
interest in any New Mexico property.
{13} 	Between 1928, when they deeded the property to David Miller, and 2002, when
a landman representing McElvain wrote a letter to Judy Lynn Quint and Ronald
Charles Weeber informing them that they were the “current owners of the oil and gas”
under the property, neither the Wilsons nor their heirs took any action in regard to the
property. 	By September 2012, the mineral interests in the property were valuable
because in 2007 Energen Resources, a named Defendant in this case, successfully
drilled under Navajo Lake, thus including the property in two Fruitland coalbed well
spacing units.
{14} 	In September 2010, Plaintiffs (the Wilson heirs and McElvain) filed a lawsuit
against Defendants (McRee’s purchasers’ heirs and their mineral lessors) seeking a
declaration that, owing to the Wilsons’ 1928 oil and gas reservation, Defendants were
barred and enjoined from asserting any claim to the mineral interests in the property,
and seeking a decree quieting title in Plaintiffs’ favor to all of the mineral interests in

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the property. Defendants answered and also filed counterclaims seeking a declaration
of certain Defendants’ ownership of the mineral interests in the property. All of the
parties moved for summary judgment.
{15} 	Owing to “the highly complex issues contained” in the case, the district court
determined that it was necessary to appoint a special master “who has an expertise in
dealing with the specific issues of determining the ownership of mineral rights.”
Ultimately, the parties chose a retired New Mexico District Court judge to serve as
special master in this case. We are not made aware of whether the special master held
any evidentiary or other hearing. The special master filed a report on September 24,
2012.
{16} 	In his report, the special master identified the central issue in the case as “the
validity of the [j]udgment in the 1948 quiet title action which purports to grant fee
simple title in [the property to] . . . Miller.” 	In the proceedings before the special
master, Defendants’ position was that the judgment was valid, therefore, their interests
that flowed from Miller’s title were also valid while Plaintiffs posited that the
judgment was void because the 1948 service by publication failed to satisfy the
Wilsons’ right to due process. 	Having reviewed the parties’ evidence that was
attached to their motions for summary judgment, the special master recommended that
the district court grant summary judgment in favor of Defendants because (1) the

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undisputed material facts supported the legal conclusion that there was no violation
of due process in connection with the 1948 quiet title proceeding; (2) Plaintiffs’ effort
to challenge the validity of the 1948 judgment constituted a collateral attack on the
judgment that would only succeed if the judgment reflected an absence of jurisdiction,
and an absence of jurisdiction was not reflected in the 1948 judgment; and (3) the
undisputed facts established that Plaintiffs’ claims of ownership were barred by
laches, waiver, and judicial estoppel. Plaintiffs objected to the special master’s report
by submitting to the special master a motion to reconsider the report and moving the
district court to reconsider the special master’s findings before entering judgment.
The district court’s judgment adopted the special master’s report in its entirety. In its
summary judgment order, the district court quieted title to the property in favor of
Defendants. Plaintiffs appeal from the court’s judgment.
{17} 	On appeal, Plaintiffs argue that the district court erred in each of the foregoing
legal determinations. 	We conclude that Plaintiffs’ evidence established that, as a
matter of law, Miller failed to exercise diligence and good faith to notify the Wilsons
of his quiet title action against them. We also conclude that Plaintiffs’ action is not
an improper collateral attack, and we further conclude that the evidence in this record
does not support the court’s conclusion that equitable principles barred Plaintiffs’

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lawsuit. We therefore hold that the district court erred in granting summary judgment
in favor of Defendants.
DISCUSSION
Summary Judgment Standard of Review
{18} 	“We review the district court’s decision to grant summary judgment de novo.”
Hydro Res. Corp. v. Gray, 2007-NMSC-061, ¶ 14, 143 N.M. 142, 173 P.3d 749.
Summary judgment is appropriate where the facts are undisputed, and the movant is
entitled to judgment as a matter of law. 	Id. 	We review the facts in a light most
favorable to the non-moving party. Wilde v. Westland Dev. Co., 2010-NMCA-085,
¶ 12, 148 N.M. 627, 241 P.3d 628. 	Further, “[a]ll reasonable inferences from the
record should be made in favor of the non[-]moving party[.]” J.R. Hale Contracting
Co. v. Union Pac. R.R., 2008-NMCA-037, ¶ 27, 143 N.M. 574, 179 P.3d 579 (internal
quotation marks and citation omitted). New Mexico courts view summary judgment
with disfavor. Romero v. Philip Morris Inc., 2010-NMSC-035, ¶ 8, 148 N.M. 713,
242 P.3d 280.
I. 	The Due Process Issue
{19} 	Plaintiffs argue that because the Wilsons were not personally served with notice
of the 1948 quiet title action, or, at a minimum, notified of the lawsuit by publication
in a San Diego newspaper or by mail at the Pershing Avenue address, the 1948

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judgment that effectively deprived the Wilsons of their oil and gas interests in the
property violated their right to due process and was, therefore, void. Plaintiffs argue
that the undisputed facts show that Miller knew or with reasonable diligence could
have learned of the Wilsons’ address of 3767 Pershing Avenue in San Diego (the
Pershing Avenue address) at which Mabel Weeber could have been personally served
in 1948. They argue further that Miller’s 1948 complaint contained a conclusory and
self-serving representation that despite a diligent inquiry, he was unable to learn of the
Wilsons’ whereabouts to effect personal service upon them. Plaintiffs contend that
the court in the 1948 action compounded the due process violation by finding, based
on the sheriff’s return, that the Wilsons could not be personally served with process
when, in fact, the return merely stated that they could not be served in San Juan
County.
{20} 	The issue whether the Wilsons were afforded due process is a question of law.
See Burris-Awalt v. Knowles, 2010-NMCA-083, ¶ 15, 148 N.M. 616, 241 P.3d 617.
Because we are reviewing the due process issue in the context of an appeal from a
summary judgment, we indulge all reasonable inferences in favor of Plaintiffs who
opposed Defendants’ summary judgment motion. See Smith v. Durden, 2012-NMSC-
010, ¶ 5, 276 P.3d 943 (stating that in reviewing an appeal from a summary judgment,
we indulge all reasonable inferences and view the facts in the light most favorable to

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the party opposing the summary judgment); see also Turner v. Bassett, 2003-NMCA-
136, ¶¶ 9-10, 134 N.M. 621, 81 P.3d 564 (reviewing a quiet title decree entered in the
context of summary judgment and viewing the evidence in a light most favorable to
the nonmoving party), rev’d on other grounds by 2005-NMSC-009, 137 N.M. 381,
111 P.3d 701. Whether the district court had jurisdiction over the Wilsons in the 1948
quiet title action is a question of law that we review de novo. 	See Sproul v. Rob &
Charlies, Inc., 2013-NMCA-072, ¶ 6, 304 P.3d 18 (“The determination whether a
district court has personal jurisdiction over a nonresident defendant is a question of
law that we review de novo.”).
{21} 	In rejecting Plaintiffs’ due process argument, the special master concluded that
the undisputed facts did “not support the proposition that the 1948 mailing address for
the Wilsons would have been identified through the exercise of reasonable diligence.”
In support of its conclusion, the special master stated that the sheriff’s return
“specifically found that, after [a] diligent search and inquiry, . . . Defendants could not
be located and personally served with process.” Further, the special master stated,
“[b]y 1948, both Judson Wilson and Eva Wilson had died; only Mabel Wilson was
alive to potentially receive personal service”; and “[b]y 1948, Mabel Wilson had
married and was known as Mabel Weeber.” The special master observed that there
were no facts in the record indicating that Miller knew of Mabel’s married name or

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the name of her husband. The special master rejected “Plaintiffs[’] attempt to raise
an issue of fact as to the availability of information regarding the location of Mabel
Weeber” by showing that phone listings for Mabel and Charles Weeber included the
Pershing Avenue address on the basis that these listings only reflected Mabel’s
married name.
{22} 	In order to comport with due process, Miller was required to undertake a
diligent and good faith effort to ascertain the location of the Wilsons and to personally
serve them with process in the 1948 quiet title action. See Campbell v. Doherty, 1949-
NMSC-030, ¶¶ 27, 30-31, 53 N.M. 280, 206 P.2d 1145 (examining the record from
a 1946 lawsuit and recognizing the requirement of diligence and good faith in
attempting to discover the names and places of residence of the defendants and or his
or her heirs); Owens v. Owens, 1927-NMSC-053, ¶¶ 2, 11, 14, 32 N.M. 445, 259 P.
822 (requiring a diligent and good faith effort to effect personal service of process);
see also Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 309, 314-18
(1950) (considering the adequacy of notice given to necessary parties in a 1947
lawsuit and explaining that within the bounds of reasonableness and practicality,
notice of process must be certain to reach the affected party). 	In 1948 notice by
publication would have been permissible only out of necessity. See Campbell, 1949-
NMSC-030, ¶ 31 (“ ‘Constructive service is in derogation of the common law. It is

13
harsh. 	It lends itself to abuse. 	It is only resorted to from necessity.’ ” (quoting
Owens, 1927-NMSC-053, ¶ 12)); see Mullane, 339 U.S. at 315, 317 (recognizing that
notice by publication comports with due process only where the parties are unknown
or missing).
{23} 	To support their argument that Miller knew or with reasonable diligence could
have learned of Mabel Weeber’s identity and whereabouts, Plaintiffs rely on the
following evidence in the record that was before the special master. The 1928 deed
from the Wilsons to David Miller was notarized in San Diego. In 1926 and in 1930,
the San Diego city directory listed the Wilsons’ address at the Pershing Avenue
address. In 1928, when David Miller acquired the property from the Wilsons, Thomas
Miller paid half the purchase price of the property. Eva Wilson’s death certificate,
which was issued by the Assessor/Recorder/County Clerk of San Diego County
reflected that Eva Wilson lived at the Pershing Avenue address, and it listed Mrs.
Weeber, who also lived at the Pershing Avenue address, as the “informant.” 	An
obituary for Eva Wilson was printed in “The San Diego Union” newspaper in
December 1944 and stated, in relevant part, that Mrs. Wilson was survived by her
daughter, Mrs. Mabel W. Weeber. Evidence presented to the special master showed
that Mabel Weeber resided at the Pershing address from 1926 until her death in 1970.
No evidence in the record shows that the Wilsons ever resided in San Juan County.

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{24} 	Additionally, Plaintiffs look to Miller’s knowingly false allegation in his 1948
quiet title action stating he was “the owner in fee simple” of the property. Plaintiffs
argue that this information could only have been gleaned by Miller or his attorneys
having conducted a title examination of the property. Miller’s 1948 complaint stated
that Miller had diligently searched and inquired for the “unknown heirs” of the
defendants and for the “unknown persons and parties” who claimed “some right, title,
interest, equity, lien, claim[,] or demand in, to, or against” the property, but that he
could not determine the identities or whereabouts of the unknown heirs and the
unknown claimants. Miller’s complaint did not, however, state that he had searched
diligently or otherwise for the living defendants who were not residents of New
Mexico, that is, for Mabel Wilson who was alive and going by her married name,
Mabel Weeber. 	Further, the 1948 sheriff’s return stated, in relevant part, that the
“Sheriff of San Juan County, New Mexico” certified that he had “diligently searched
and inquired for the [d]efendants . . . ; that after such search and inquiry, I have been
unable to find any of the [d]efendants in San Juan County, New Mexico, and I have
been unable to find the [p]ost [o]ffice addresses, places of residence, or whereabouts
of the [d]efendants[.]” Relying on the sheriff’s return that indicated a search limited
to San Juan County, the 1948 court found, in relevant part, that the Wilsons could not
be personally served there with process.

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{25} 	Based on the foregoing, Plaintiffs argue that because Miller contributed to his
brother’s purchase of the property and because the information regarding the Wilsons’
residence was in his chain of title, Miller knew or should have known that the Wilsons
lived in San Diego and that they had reserved the oil and gas interests in the property.
They argue that had Miller wished to fulfill his due process obligations, with
reasonable diligence, he could have ascertained Mabel Weeber’s identity and address,
and have personally sent notice to her of his quiet title action. At the very least, they
argue Miller could have effected notice by publication in a San Diego newspaper.
Plaintiffs argue further that Mabel Wilson was a named defendant in the quiet title
action and, as such, she was neither an unknown heir nor was she an unknown
claimant; therefore, Miller’s complaint blatantly lacked any attestation as to a diligent
search for her whereabouts.
{26} 	Plaintiffs also argue that the 1948 district court erred in finding, based on the
sheriff’s return, that the Wilsons could not be personally served. In Plaintiffs’ view,
the sheriff’s return merely confirmed that the sheriff was unable to find any of the
defendants in San Juan County, New Mexico; therefore, according to Plaintiffs, the
1948 court’s finding went “well beyond” what the sheriff’s return stated.
{27} 	Plaintiffs theorize that Miller’s failure in good faith to attempt to personally
serve Mabel Weeber with notice of his quiet title action may reasonably be viewed as

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having been intentional and self-serving, as Miller’s aim in seeking to quiet title to the
property was to acquire the rights to the Wilsons’ oil and gas interests in the property.
Plaintiffs support their ascription of Miller’s mal-intent by pointing to the fact, also
in the record, that “shortly after” the 1948 quiet title action, in 1950, Miller conveyed
his interest in the property to McRee, but reserved three-fourths of the mineral
interests for himself. 	Plaintiffs argue that Miller’s failure to attempt to personally
serve Mabel Weeber with process or at least to publish notice of the action in a San
Diego newspaper or to mail notice of the action to the Pershing Avenue address was
in derogation of the principle that the notice employed must be more than a mere
gesture, it must reflect a desire on behalf of the party effecting service of actually
informing the absentee of the lawsuit. See Mullane, 339 U.S. at 315 (“[W]hen notice
is a person’s due, process which is a mere gesture is not due process. 	The means
employed must be such as one desirous of actually informing the absentee might
reasonably adopt to accomplish it.”). In sum, according to Plaintiffs, because Miller’s
obvious goal in quieting title to the property was to gain ownership of the Wilsons’
oil and gas interests in the property, his actions were designed to avoid giving the
Wilsons notice of his lawsuit.
{28} 	In response, Defendants argue that summary judgment should be affirmed
because Plaintiffs failed to demonstrate that Mabel Weeber was not on notice of the

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1948 quiet title action. Because our standard of review mandates that we view the
evidence in the light most favorable to and indulge all reasonable inferences in favor
of Plaintiffs in this case, we reject this argument. See Wilde, 2010-NMCA-085, ¶ 12
(stating the standard of review applicable to an appeal from summary judgment); J.R.
Hale Contracting, 2008-NMCA-037, ¶ 27 (same). Although it is true that Plaintiffs
have failed to affirmatively demonstrate that Mabel Weeber did not see the notice
published in the Farmington paper, it is axiomatically difficult to prove something in
the negative, particularly several decades after the death of the knowledgeable party.
Based on the fact that Mabel Weeber did not enter an appearance in the 1948 action,
and the further facts that while Mabel Weeber only lived in San Diego from 1926 and
notice of Miller’s lawsuit was published exclusively in a Farmington, New Mexico
newspaper, a reasonable inference is that Mabel Weeber was not on notice of Miller’s
1948 action.
{29} 	Alternatively, Defendants argue that the special master correctly concluded that
Plaintiffs’ evidence failed to raise a question of fact as to the validity of the 1948
court’s finding that, notwithstanding a diligent search or inquiry, Miller could not
locate the Wilsons. 	In support of their argument, Defendants point to the special
master’s conclusions that (1) “there is nothing to indicate that . . . Miller had
information regarding Mabel Weeber’s whereabouts . . . in 1948”; and (2) “[t]here are

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no facts in the record which would indicate that . . . Miller or anyone attempting to
achieve service on Mabel knew of Mabel’s married name or the name of her
husband.” 	Defendants contend that Plaintiffs’ evidence does not contradict these
conclusions. We disagree.
{30} 	Evidence in the record reflects that every transaction involving the Wilsons and
the property showed that the Wilsons resided in San Diego during 1926-28, and no
evidence showed that the Wilsons had resided any place except San Diego. Thus, as
noted earlier, it is reasonable to infer that Miller was aware of the Wilsons’ San Diego
residence in 1927 and 1928 and likely could have ascertained their San Diego
residence in 1948. Further, with nothing to suggest otherwise, it would be reasonable
for Miller to have, in good faith, assumed that in 1948 the Wilsons were still in San
Diego.
{31} 	The absence of anything in the record to indicate that Miller knew that Mabel
Wilson had become Mabel Weeber does not support summary judgment for
Defendants. Having apparently made no attempt to locate the Wilsons in San Diego,
Miller’s inability to learn of Mabel Wilson’s married name was not caused by the fact
that her name had changed, but by the fact that his efforts to locate her were limited
to the State of New Mexico. 	See Owens, 1927-NMSC-053, ¶ 10 (stating that one
cannot remain willfully, studiously, or deliberately ignorant of a means of personal

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service and honestly swear that the adversary’s residence is unknown). It is possible
that had Miller attempted to locate the Wilsons in San Diego, he would have been
stymied by Mabel Wilson’s changed name. It is equally possible that a phone call or
letter to the county clerk in San Diego, who had issued Eva Wilson’s death certificate,
which listed Mrs. Weeber as the informant of Eva Wilson’s death, would have led to
the Wilsons’ address, at which Mabel Weeber continued to reside with her husband
as reflected by the 1947-48 San Diego City Directory that listed “Weeber Chas E
(Mabel W)” at the Pershing Avenue address.
{32} 	The special master concluded that Mabel Weeber’s due process was not
violated in the 1948 case because “there is nothing to indicate that . . . Miller had
information regarding Mabel Weeber’s whereabouts or that her whereabouts could be
identified through reasonable diligence[.]” But reasonable inferences drawn from the
evidence in favor of Plaintiffs require the conclusion that had Miller been interested
in serving the Wilsons in 1948 with notice of the quiet title action, his search would
and should have included San Diego and would have likely led to the possibility of
learning Mabel Weeber’s identity and address. 	Thus, the attempted constructive
service in this case did not pass constitutional due process muster, and summary
judgment in favor of Defendants was not appropriate.

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The Collateral Attack Issue
{33} 	Because Plaintiffs sought, in the present lawsuit, to have the 1948 judgment
declared void as to the Wilsons, their lawsuit constituted a collateral attack on the
1948 judgment. See Hanratty v. Middle Rio Grande Conservancy Dist., 1970-NMSC-
157, ¶¶ 4-5, 82 N.M. 275, 480 P.2d 165 (defining a “collateral attack” as an attempt
in a separate action to impeach “a judgment by matters dehors the record” (internal
quotation marks and citation omitted)). A judgment entered against a party who did
not receive effective service of process is subject to a collateral attack because a court
has no jurisdiction over parties who have not been notified of a lawsuit against them.
See Rodriguez v. La Cueva Ranch Co., 1912-NMSC-028, ¶¶ 1, 19, 22, 17 N.M. 246,
134 P. 228 (permitting a collateral attack on a land grant partitioning decree by a party
that claimed adverse possession in the at-issue land, but who had not received notice
of the partition suit and was, therefore, not subject to the decreeing court’s
jurisdiction); see also Harlan v. Sparks, 125 F.2d 502, 505 (10th Cir. 1942) (applying
New Mexico law to hold that a probate court’s decree of heirship and apportionment
of the decedent’s property was open to a collateral attack on the ground that certain
interested parties did not receive effective service of process); Jueng v. N.M. Dep’t of
Labor, 1996-NMSC-006, ¶ 8, 121 N.M. 237, 910 P.2d 313 (stating that “failure to
serve a party with process in a proper manner generally means only that the court has

21
no power over that party and cannot render a judgment binding that party” (alteration,
internal quotation marks, and citation omitted)). 	In this case, based on his having
stated no more than that there was “nothing in the 1948 [j]udgment indicating a lack
of jurisdiction[,]” the special master concluded that “Plaintiffs’ collateral attack on the
judgment fails as a matter of law.”
{34} 	Relying on the principle that a judgment cannot be collaterally attacked unless
the judgment or the record affirmatively shows that the court lacked jurisdiction over
the party contesting its validity, Defendants argue that the 1948 judgment is not
subject to Plaintiffs’ collateral attack because, on its face, the judgment does not
reflect an absence of jurisdiction. See In re Estate of Baca, 1980-NMSC-135, ¶ 11,
95 N.M. 294, 621 P.2d 511 (stating that judgments cannot be collaterally attacked
“unless lack of jurisdiction appears affirmatively on the face of the judgment or in the
judgment roll or record, or is made to appear in some other permissible manner”);
Swallows v. Sierra, 1961-NMSC-063, ¶ 4, 68 N.M. 338, 362 P.2d 391 (holding that
a former judgment could not be collaterally attacked because the party contesting its
validity had not claimed that the judgment failed to affirmatively show a lack of
jurisdiction). Because the permissibility of a collateral attack of the 1948 judgment
on the basis of lack of personal jurisdiction over the Wilsons was considered in the
context of a summary judgment, we view the facts in the light most favorable to

22
Plaintiffs and indulge all reasonable inferences in their favor. 	See Smith, 2012-
NMSC-010, ¶ 5 (stating that in reviewing an appeal from a summary judgment, we
indulge all reasonable inferences and view the facts in the light most favorable to the
party opposing the summary judgment). 	We review de novo whether the court
correctly applied the law to the facts. 	Gomez v. Chavarria, 2009-NMCA-035, ¶ 6,
146 N.M. 46, 206 P.3d 157.
{35} 	Defendants point to the fact that the 1948 judgment states that the Wilsons
could not be located or served in San Juan County, notice of the lawsuit was
published, and the Wilsons were named in the publication. The court found that the
Wilsons could not be personally served, the Wilsons did not answer the published
notice, and the judgment stated that the court had jurisdiction over the Wilsons.
Defendants also assert that the sheriff’s return supports the 1948 district court’s
finding that the Wilsons could not be personally served. We are not persuaded.
{36} 	As discussed earlier in this Opinion, Plaintiffs’ evidence supports a reasonable
inference that Miller, either by having contributed to the purchase price of the
property when his brother purchased it from the Wilsons, or by the title examination
that led him to name each of the Wilsons as defendants in his quiet title action, knew
or should have known that the Wilsons lived in San Diego at the time of the deed.
Nevertheless, neither Miller’s complaint nor the sheriff’s return show that the search

23
for the Wilsons or their “unknown heirs” exceeded the bounds of San Juan County or
New Mexico, nor did the complaint acknowledge the fact or the possibility of the
Wilsons’ out-of-state residence. By omitting from his 1948 complaint the fact that the
Wilsons were non-residents of San Juan County or of New Mexico, Miller avoided
having to aver that he had, in good faith, attempted to locate them in their home state.
See Bowers v. Brazell, 1926-NMSC-003, ¶¶ 4, 11, 31 N.M. 316, 244 P. 893 (stating
that where a plaintiff sought to provide service by publication of a defendant residing
in a foreign jurisdiction, the plaintiff was required to state in an affidavit that a
defendant who is owed service of process resides out of the state); see also Campbell,
1949-NMSC-030, ¶ 30 (recognizing the continuing validity, in 1949, of the Bowers
decision related to notice and jurisdiction). Further, because Miller did not advise the
1948 court of the Wilsons’ non-residence, the court had no basis on which to consider
the effectiveness of notice by publication in a Farmington, New Mexico newspaper,
nor did it have the opportunity to consider whether, owing to the possibility of
ineffective notice, it lacked jurisdiction over the Wilsons.
{37} 	Additionally, Defendants argue that an averment in Miller’s complaint that “if
[the Wilsons] . . . are living, and reside in or have their places of residence in the State
of New Mexico, [they] have secreted themselves so that service of process cannot be
had upon them” was sufficient to comport with the then-applicable Rule of Civil

24
Procedure. Defendants’ argument is premised on the notion that the then-applicable
rule, stated in Campbell, provided that the plaintiff was required to “file a sworn
pleading . . . stating that any defendant resides or has gone out of the state, or has
concealed himself within the state, . . . so that process cannot be served upon . . .
them” and, if this was done, service by publication was permissible. 1949-NMSC-
030, ¶ 24 (internal quotation marks and citation omitted). Thus, Defendants argue,
under the rule stated in Campbell, Miller could, in keeping with due process, either
state that the Wilsons resided out of State or he could state that if they lived in New
Mexico, they had secreted themselves. We disagree.
{38} 	It would run contrary to due process to interpret the then-applicable service of
process rule to allow a plaintiff to avoid making any effort beyond only publishing in
a local newspaper where the property was located to pursue service on a quiet title
defendant, who was known to reside in a foreign jurisdiction at the time that the
parties conducted their business related to the property, and who was never known to
have resided in New Mexico, merely by stating that the defendant may have secreted
himself in New Mexico. See Campbell, 1949-NMSC-030, ¶ 31 (recognizing that in
accord with the “plain purpose” of the then-applicable constructive notice statute, one
may not willfully, studiously, and deliberately avoid knowledge of an adversary’s
residence and yet claim that the adversary’s residence is unknown). 	Under the

25
circumstances of this case, where a reasonable inference is that Miller knew of the
Wilsons’ residence outside New Mexico at the time that the Wilsons purchased the
property from McEwen and at the time that the Wilsons conveyed the property to
Thomas Miller, due process required that he so state and that he exert a good faith
effort to effect personal service. See Campbell, 1949-NMSC-030, ¶ 35 (“Diligence
is a relative term and must be determined by the circumstances of each case.”);
Owens, 1927-NMSC-053, ¶ 4 (holding that due process required personal service of
a plaintiff whose whereabouts, in another state, could have been ascertained but for
the plaintiff having wholly failed to make an effort to do so); see also Mullane, 339
U.S. at 315 (“The means [of notice] employed must be such as one desirous of
actually informing the absentee might reasonably adopt to accomplish it.”).
{39} 	In sum, the 1948 quiet title record, including the complaint and the judgment,
affirmatively shows that Miller failed to either investigate strong indications known
to him of the Wilsons’ whereabouts as required, or to fully apprise the court of the
circumstance of the Wilsons’ San Diego residence during their transactions in regard
to the property. In turn, he was able to effectively avoid any requirement or potential
mandate that he attempt to personally serve the Wilsons in San Diego. See Owens,
1927-NMSC-053, ¶¶ 4, 10 (holding that the plaintiff, who avoided a requirement to
notify the non-resident defendant of his action by stating that he did not know the

26
defendant’s address, acted in bad faith because, had he so desired, he could easily
have found the defendant’s address). 	We hold that the district court erroneously
determined that Plaintiffs’ claim was barred under the collateral attack doctrine.
II. 	The Equity Issues
{40} 	The district court concluded that an alternative ground for granting summary
judgment in favor of Defendants was that the undisputed facts demonstrated that
Plaintiffs’ claim was barred by the equitable doctrines of laches, waiver, and judicial
estoppel. Defendants argue that the district court’s application of laches, waiver, and
judicial estoppel should be reviewed for an abuse of discretion. We disagree. When
an equitable determination is made in the context of summary judgment, the appellate
court reviews the evidence in the light most favorable to the nonmoving party to
determine whether the district court erred as a matter of law in applying the equitable
principles. See Brown v. Trujillo, 2004-NMCA-040, ¶ 20, 135 N.M. 365, 88 P.3d 881
(recognizing that ordinarily an equitable determination is reviewed for an abuse of
discretion, but where the equitable determination was made “in the context of
summary judgment, we view the evidence in the light most favorable to the
nonmoving party”). We review issues of law de novo. Helena Chem. Co. v. Uribe,
2013-NMCA-017, ¶ 28, 293 P.3d 888.

27
{41} 	In order to permit a legal conclusion that the doctrine of laches applied, the
undisputed facts before the district court had to show that (1) Defendants’ conduct
gave rise to the situation of which the complaint was made and for which Plaintiffs
seek a remedy; (2) Plaintiffs had knowledge or notice of Defendants’ conduct and an
opportunity to institute a lawsuit, but delayed in asserting their rights; (3) Defendants
lacked knowledge or notice that Plaintiffs would assert the right on which they based
their lawsuit; and (4) Defendants would suffer injury or prejudice in the event
Plaintiffs were to prevail or their lawsuit was allowed to proceed. 	See Garcia v.
Garcia, 1991-NMSC-023, ¶ 31, 111 N.M. 581, 808 P.2d 31 (stating the elements of
laches).
{42} 	In order to support the legal conclusion that the doctrine of waiver applied, the
undisputed facts had to demonstrate that Plaintiffs knew they were entitled to enforce
a right, but neglected to do so for so long that Defendants could fairly infer that
Plaintiffs waived or abandoned the right. See Magnolia Mountain Ltd. P’ship v. Ski
Rio Partners, Ltd., 2006-NMCA-027, ¶ 29, 139 N.M. 288, 131 P.3d 675 (defining
waiver by acquiescence). “[A] trial court should not infer acquiescence from doubtful
or ambiguous acts.” Id. (internal quotation marks and citation omitted).
{43} 	The court based its laches and waiver conclusions on the facts that (1) neither
the Wilsons nor their successors did anything to claim ownership in the oil and gas

28
interests connected to the property from the date of the deed to David Miller in 1928
until 2002 when McElvain sought to enter into a lease with them, and (2) Plaintiffs
only “stepped forward to contend they [had] an interest in the property after” a well
was successfully completed in 2007. 	While Defendants maintain that each of the
district court’s laches and waiver holdings should be affirmed, at oral argument before
this Court, Defendants did not discuss waiver and concentrated on and emphasized
their view that the doctrine of laches was properly applied in this case. Accordingly,
although we hold that neither laches nor waiver were properly applied here, we
address Defendants’ laches argument in some detail.
{44} 	In regard to laches, Defendants argue in their answer brief and emphasized at
oral argument that because Miller recorded his quiet title judgment pursuant to NMSA
1978, Section 14-9-1 (1886, amended 1991), and because subsequent conveyances of
the property were likewise recorded as required by law, the Wilsons and their heirs
were, pursuant to NMSA 1978, Section 14-9-2 (1915), charged with “notice” of
Miller’s quiet title action and of subsequent transactions involving the property. See
§ 14-9-1 (requiring that all writings affecting the title to real estate, including deeds,
mortgages, and leases, to be recorded in the office of the county clerk in the county
in which the property is located); § 14-9-2 (stating that county clerk records of
instruments affecting real estate, as required by Section 14-9-1, “shall be notice to all

29
the world of the existence and contents of the instruments so recorded from the time
of recording”). 	In Defendants’ view, this notice was sufficient to meet the laches
element of Plaintiffs’ notice of Defendants’ quiet title decree and later lease
transactions and their opportunity to institute a lawsuit but delayed in asserting their
rights. 	See Garcia, 1991-NMSC-023, ¶ 31 (stating the elements of laches).
Defendants’ reliance on Sections 14-9-1 and -2 is misplaced.
{45} 	The phrase “all the world” as it is used in Section 14-9-2 “has been limited to
mean persons who are bound to search the record,” such as subsequent purchasers.
Allen v. Timberlake Ranch Landowners Ass’n, 2005-NMCA-115, ¶ 34, 138 N.M. 318,
119 P.3d 743. 	Neither Section 14-9-2 nor any authority of which we are aware
imposes a duty upon the owner of an interest in real property to constantly peruse the
records of the county clerk to determine whether he or she has been divested of his or
her property right in a lawsuit of which he or she was not notified. In this case, we
will not interpret Section 14-9-2 to stand for the proposition that the Wilsons were
“bound to search the record,” Allen, 2005-NMCA-115, ¶ 34, after they sold the
property subject to an oil and gas reservation, such that they should be held to have
had constructive notice of Miller’s quiet title action as a result of the recording of a
quiet title judgment and later leasehold transactions in the San Juan County records.

30
{46} 	Defendants argue further that Skaggs v. Conoco, Inc., 1998-NMCA-061, 125
N.M. 97, 957 P.2d 526, and Farrar v. Hood, 1952-NMSC-095, 56 N.M. 724, 249 P.2d
759, support the application of the doctrine of laches to the circumstances here. In
Skaggs, in 1994 the plaintiffs sought to declare void a 1927 drilling and operating
agreement between Mr. Skaggs (the decedent) and the prospecting company, Marland
Oil Company of Colorado, permitting Marland to explore, drill, develop, produce, and
market any oil and gas on the at-issue property. 1998-NMCA-061, ¶¶ 3-4, 7. The
plaintiffs claimed that the 1927 agreement was void because the decedent’s wife at the
time of the conveyance had not joined in the conveyance, and as a result of the
allegedly void conveyance, the plaintiffs, who were the decedent’s wife’s heirs,
sought to quiet title to the property in their favor. Id. ¶¶ 2-3, 7-8, 10. The defendants
claimed that laches, among other defenses, barred the plaintiffs’ lawsuit. Id. ¶ 7. The
record on appeal before the Skaggs Court included undisputed evidence that as early
as 1951, the decedent’s wife knew of her husband’s allegedly void conveyance to
Marland and of his subsequent conveyance to third parties of any royalty interest from
Marland’s activities. Id. ¶ 11. The Skaggs Court held that under those circumstances,
where it was evident that the decedent’s wife was on notice of her husband’s
conveyances, yet neither she nor the heirs attempted to enforce any rights related to
the property until more than forty years later, during which time the defendants had

31
invested “substantial sums in prospecting and developing” the property, the doctrine
of laches was properly applied. Id. ¶ 13.
{47} 	Farrar involved a transaction in which one party, the conveyor, conveyed
mineral interests in exchange for a share of a speculative security sold by another
party, the seller. 1952-NMSC-095, ¶ 3. The seller was not authorized to engage in
the sale of speculative securities at the time of the transaction. 	Id. ¶¶ 2, 8-11. The
seller induced the conveyor into the sale by representing that the speculative security
venture would be profitable, however, five years after the transaction, the seller
informed the conveyor that the venture was less than half as valuable as the seller had
earlier represented. 	Id. ¶¶ 12, 14. 	Nevertheless, the conveyor did not attempt to
escape the effect of his mineral deed transfer to the seller until nineteen years later,
when the conveyor sought to void the original transaction based on a prohibition
against the unauthorized sale of speculative securities. Id. ¶¶ 14, 16, 33. By the time
the conveyor sought to void the original transaction, the mineral interests that the
conveyor had conveyed to the seller had become twenty times more valuable than they
were at the time of the conveyance. 	Id. ¶ 33. 	The Farrar Court held that laches
barred the conveyor’s lawsuit because it violated the principle that “[a] person may
not withhold his claim, awaiting the outcome of an enterprise, and then, after a
decided turn has taken place in his favor, assert his interest, especially where he has

32
thus avoided the risks of the enterprise.” 	Id. ¶ 35 (internal quotation marks and
citation omitted).
{48} 	In both Skaggs and Farrar, the parties that were barred by laches were on
notice of the allegedly wrongful transaction underlying their lawsuits years before
they sued to vindicate their rights. 	Notably, in concluding that waiver and laches
applied in the case now before this Court, the district court did not find that the
undisputed facts of this case demonstrated that the Wilsons knew or had notice of
Miller’s quiet title action, or of Miller’s subsequent actions in regard to the mineral
interests in the property. 	With regard to the question whether the Wilsons’ due
process right to notice was violated, the district court could reasonably have
concluded that, as a matter of undisputed fact, the Wilsons were on notice of Miller’s
quiet title action. Unlike the plaintiffs in Skaggs and Farrar, Plaintiffs have not been
shown to have delayed legal action to vindicate a wrong of which they were
indisputably on notice. We conclude, therefore, that the record did not support a legal
determination that Plaintiffs’ lawsuit was barred by laches, and we further conclude
that Skaggs and Farrar do not support Defendants’ laches argument. 	See Garcia,
1991-NMSC-023, ¶ 31 (stating that a finding of laches requires that the complaining
party had notice of the defendant’s actions).

33
{49} 	There is no evidence to support an inference or a conclusion that the Wilsons
or their heirs knew that they were entitled to enforce their right to the oil and gas
interest in the property against Miller or his heirs, but neglected to do so. The district
court could properly have determined that waiver applied. See Magnolia Mountain,
2006-NMCA-027, ¶ 29 (defining waiver). 	Having not been notified that their
ownership of the oil and gas interests in the property were threatened and later
unlawfully terminated by Miller’s quiet title action, the Wilsons and their heirs cannot
be said to have waived their rights.
{50} 	Judicial estoppel is applied to prevent a party from maintaining inconsistent
positions in judicial proceedings. 	Citizens Bank v. C & H Constr. & Paving Co.,
1976-NMCA-063, ¶ 36, 89 N.M. 360, 552 P.2d 796. 	“Where a party assumes a
certain position in a legal proceeding and succeeds in maintaining that position,
[judicial estoppel precludes him from] thereafter assum[ing] a contrary position,
especially if it be to the prejudice of the party who has acquiesced in the position
formerly taken by him.” Id. Here, the special master determined that judicial estoppel
barred Plaintiffs’ lawsuit because Mabel Weeber and her husband, Charles Weeber,
whose estates have gone through probate, did not indicate ownership in the subject
property at the time of their respective deaths. Thus, according to the special master,

34
Plaintiffs’ present lawsuit was inconsistent with their actions in the probate
proceedings.
{51} 	In our view, judicial estoppel does not apply under the circumstances of this
case. 	That the inventories in Mabel and Charles Weeber’s probate proceedings
omitted the oil and gas interests in the property is of little, if any, probative value on
the matter of ownership of or right to the oil and gas interests in the property. The
wills did not mention any particular properties and the inventories were prepared after
the two were deceased. Indeed, it is not unheard of that a will would dispose of some,
but not all, of a decedent’s property. 	See Cal. Probate Code, § 6400 (West 2014)
(stating that “[a]ny part of the estate of a decedent not effectively disposed of by will
passes to the decedent’s heirs”); see also NMSA 1978, § 45-2-101(A) (1993) (stating
that “[a]ny part of a decedent’s estate not effectively disposed of by will passes by
intestate succession to the decedent’s heirs”). Moreover, the parties do not point to
any evidence in the record that reflects that Mabel Weeber or, later, her husband,
affirmatively acknowledged their lack of ownership or right to the oil and gas interests
in the property. Thus, what this record shows is an absence of any legal position taken
by Mabel or Charles Weeber or their heirs in regard to the oil and gas interests in the
property. 	Under these circumstances, we conclude that judicial estoppel is not
supported by the undisputed facts in the record.

35
{52} 	In sum, the record demonstrates that the Wilsons, particularly Mabel Weeber,
did not receive constitutionally adequate notice of Miller’s 1948 quiet title action.
Further, nothing in the record reflects that they were placed on notice of the quiet title
decree or later oil and gas transactions. Under these circumstances, we cannot uphold
the district court’s application of the equitable principles as a bar to Plaintiffs’ lawsuit.
Defendants’ Presumed Grant Argument
{53} 	Defendants argue that we should affirm the district court’s summary judgment
on the basis of the doctrine of presumed grant. 	Neither the special master nor the
district court considered or ruled on this issue. It is therefore not properly before this
Court, and we decline to consider the issue. See Luginbuhl v. City of Gallup, 2013-
NMCA-053, ¶ 41, 302 P.3d 751 (stating that, where the district court did not consider
or rule on an issue, the issue was not properly before this Court).
CONCLUSION
{54} 	Having concluded that Miller failed to attempt, in good faith and with
reasonable diligence, to serve Mabel Weeber with notice of his 1948 quiet title action,
we hold that the quiet title action was subject to a collateral attack and was void as to
the Wilsons. 	We also hold that the facts in this record did not support the district
court’s application and determinations of laches, waiver, and judicial estoppel. We

36
reverse the order of the district court granting summary judgment in favor of
Defendants. We remand for further proceedings consistent with this Opinion.
{55} 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:
___________________________________
RODERICK T. KENNEDY, Chief Judge
___________________________________
MICHAEL E. VIGIL, Judge