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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

No. A-1-CA-40432

KAREN ANNE KOCH; KAREN L. COOK;

ROBERT COOK DEEGAN; ROBERT AVERY

KOCH; KATHLEEN KOCH CALLENDER;

GREGORY RYAN; ENERGY INVESTMENTS,

INC.; and WENDI CHAMBERLAIN, Successor

Trustee of the STEPHEN P. CHAMBERLAIN

TRUST U/T/A DATED JULY 20, 2003,

Plaintiffs-Appellees,

v.

THE DAVID FAMILY OIL AND GAS INTERESTS

PARTNERSHIP; BARBARA C. BLUME, as Personal 

Representative of the ESTATE OF E. BJARNE

BLUME, Deceased; KRISTEN L. BLUME, individually

and as Successor Trustee of the FRED P. BLUME

FAMILY TRUST AND THE GULLVI L. BLUME

FAMILY TRUST; BAYSWATER FUND III-A LLC;

BAYSWATER FUND III-B, LLC; BAYSWATER

FUND IV-B, LLC; BAYSWATER RESOURCES,

LLC; BLU-CHIP RESOURCES, LLC; DITTO LAND

COMPANY, LLC; ROBBINS FAMILY MINERALS,

LP; FALL LAND & CATTLE, LLC; and COLBURN

OIL, LP,

Defendants-Appellants.

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY

Jane Shuler Gray, District Court Judge

Gallegos Law Firm

J.E. Gallegos

Santa Fe, NM

for Appellees Karen Anne Koch, Robert Avery Koch, and Kathleen Koch Callender
Holloman Law, LLC

Scotty Holloman

Hobbs, NM

for Appellees Karen L. Cook, Robert Cook Deegan, and Gregory B. Ryan

Modrall, Sperling, Roehl, Harris & Sisk, P.A.

Chris H. Killion

Spencer L. Edelman

Albuquerque, NM

for Appellant David Family Oil and Gas Interests Partnership

Cavin & Ingram, P.A.

Scott S. Morgan

Brandon D. Hajny

Albuquerque, NM

for Appellants E. Bjarne Blume, Kristen L. Blume, the Fred

P. Blume Family Trust, the Gullvi L. Blume Family Trust,

and Blu-Chip Resources, LLC

Hinkle Shanor LLP

Andrew J. Cloutier

Jared A. Hembree

Ann Cox Tripp

Roswell, NM

for Appellants Bayswater Fund III-A, LLC, Bayswater Fund III-B, LLC,

Bayswater Fund IV-B, Bayswater Resources, LLC, and Ditto Land

MEMORANDUM OPINION

BUSTAMANTE, Judge, retired, sitting by designation.

{1} This case involves competing claims of ownership to an overriding royalty 

interest in a federal oil and gas lease located in Eddy County in southern New Mexico. 

The district court granted summary judgment in favor of Plaintiffs Karen Koch, Karen 

Cook, Robert Cook Deegan, Robert Avery Koch, and Kathleen Koch Callender, Gregory 

Ryan, Energy Investments, Inc., and Wendi Chamberlain against Defendants the David 

Family Oil and Gas Interests Partnership, Barbara Blume, Kristen L. Blume, Bayswater 

Fund III-A, LLC, Bayswater Fund III-B, LLC, Bayswater Fund IV-B, LLC, Bayswater 

Resources, LLC, Blue-Chip Resources, LLC, Ditto Land Company, LLC, Robbins 

Family Minerals, LP, Fall Land & Cattle, LLC, and Colburn Oil, LP. We conclude that 

there are questions of material fact precluding summary judgment against parties in the 

David chain of title. We also conclude that the district court misapplied New Mexico’s 
law with regard to “void” versus “voidable” conveyances of real property in the 

circumstances of this case. We affirm in part, reverse in part, and remand for further 

proceedings in accordance with this opinion.

BACKGROUND

Parties and Facts

{2} This is an appeal from a consolidated quiet title action. The first complaint was 

filed by some members of the Koch family in March 2021 asserting full ownership of a 

3.375% overriding royalty interest in federal oil and gas lease Serial No. 0243816 (the 

Lease). In May 2021, Plaintiff Gregory Ryan and others filed a separate quiet title action 

two months later asserting ownership of a portion of the same royalty interest. Noting 

that the two actions involved the same property and substantially the same claimants, 

the parties jointly moved to have the cases consolidated. The order of consolidation was 

entered in July 2021. 

{3} For ease of reference we sort the various parties into three groups. Three of the 

Koch Plaintiffs are the surviving children of Robert and Anne Koch. Two of the Koch 

Plaintiffs are the surviving children of Anne from her subsequent marriage to William 

Cook. We refer to them collectively as the Koch Plaintiffs. The David Defendants are 

entities whose claims derive from assignments initially made by Robert W. David or 

entities owned by him following his purchase of the overriding royalty interest from the 

estate of Robert Koch. The David Defendants include the David Family Oil and Gas 

Interest Partnership, the Bayswater entities, and the Blume Defendants. The Ryan 

Plaintiffs trace their claim to an assignment made to them by Kathleen Koch Callender 

and Robert Avery Koch following an assignment to them from Anne’s estate. 

{4} The full history of the creation and subsequent assignments of the Lease is long 

and complicated. After review of the record and the parties’ briefing, we conclude that it 

is not necessary to recite it in full detail in order to resolve the issues presented on 

appeal. The parties’ competing claims to the overriding royalty interest all start with 

assignments from the separate estates of Robert and Anne Koch. The district court’s 

summary judgment resolved the case by examining the validity and extent of those root 

assignments. We will follow suit.1

{5} It is apparently uncontested that the Lease was first issued to Thomas S. 

Bowman. Bowman assigned his entire interest in the Lease to Robert Koch, but 

reserved a “1.125% of 8/8ths” overriding royalty interest. Robert Koch and his wife Anne 

Koch executed a similar assignment in favor of “Helbing and Podpechan partnership” 

reserving for themselves a “3.875% of 8/8ths” overriding royalty interest. Robert and 

Anne Koch assigned “ONE-HALF OF ONE (1/2 OF 1%) PERCENT” of the overriding 

 

1To the extent those assignments are upheld as valid, the interests of the parties likely will quickly fall into 

place. The Ryan Plaintiffs appear to have resolved their internal differences by agreement. We cannot—

and do not—delve into the competing claims internal to the three general groups we have identified 

because the district court’s summary judgment did not address these issues directly.
royalty interest attendant to the Lease to Janell Corporation. The assignment to Janell 

was recorded in Eddy County on March 27, 1962. The parties apparently agree that 

these transactions—both of which occurred in March 1962—left Robert and Anne Koch 

owning a 3.375% overriding interest in the Lease. 

{6} Robert and Anne divorced in 1969. The divorce decree left open matters such as 

the division of property, alimony and child support for later determination. As part of a 

negotiated agreement resolving the property issues, Robert agreed to convey a “fiveeighths (5/8) interest” in certain oil and gas properties, including the Lease. Robert 

executed an “Assignment of Overriding Royalty Affecting United States Oil and Gas 

Lease”—a federal BLM form—in February 1970 in which he conveyed “5/8ths of 3%” in 

the Lease to Anne.2 There is nothing in the record reflecting that the assignment to 

Anne was filed with the BLM office in New Mexico or recorded in the Eddy County 

Clerk’s Office. Nor is there any indication in the record proper that the divorce decree 

was filed with the Eddy County Clerk’s Office. 

{7} Robert died a single man in June 1975. His will was probated in the Denver, 

Colorado probate court. It is uncontested that Samuel Kumagai was appointed the 

personal representative of the estate. It is also uncontested that no ancillary probate 

proceeding was established in New Mexico even though the estate included and sold 

real estate located within the state. As part of his administration of the estate, Mr. 

Kumagai sold Robert’s overriding royalty interest in the Lease to Robert W. David in 

June 1977. The assignment to Mr. David purports to convey a 3.125% interest, 

apparently failing to recognize or take into account the split of the interest with Anne as 

a result of the divorce. 

{8} Anne Koch died testate in August 2005 still owning as her separate property the 

overriding royalty interest she received as part of the divorce from Robert. It is 

apparently undisputed that the royalty interest in the Lease was not distributed to any 

individual, but was rather placed in a family trust as part of a residuary bequest. There is 

nothing in the record indicating that an ancillary probate was opened in New Mexico 

when Anne’s estate was probated. 

{9} As noted above, all of the parties’ claims to ownership of the overriding royalty 

interest in the Lease flow from these early transactions and events.

Summary Judgment Motions

{10} The case was decided by the district court on cross-motions for summary 

judgment. The Koch Plaintiffs filed the first motion, arguing generally that the 

 

2The Koch Plaintiffs argued below that the agreement and the BLM conveyance resulted in Anne owning 

the entire royalty interest. The district court rejected that interpretation of the documents. The Koch and 

Ryan Plaintiffs requested that the court enter judgment limiting Anne’s interest to “5/8ths (1.875%) of the 

3.375% overriding interest.” We interpret the request to mean that the Koch Plaintiffs have abandoned 

their prior arguments. In any event, given that the Koch Plaintiffs did not file a cross-appeal on the issue, 

they cannot challenge it now.
conveyance from Robert Koch’s estate was ineffective because—as a result of the 

divorce settlement agreement—Robert owned no interest in the overriding royalty 

interest in the Lease when he died, and because, even if he did, as real property, the 

royalty interest passed directly to James Koch, his named residuary heir under New 

Mexico law and thus it never became part of the estate subject to conveyance by the 

personal representative. 

{11} The David Defendants filed three separate responses to the Koch Plaintiffs’ 

motion, though the arguments made by them are in substance just variations on a 

theme. The Bayswater entities argued that Colorado divorce law controlled the effect of 

the Koch’s divorce and that the Colorado probate law in effect at the time of Robert 

Koch’s death controlled the disposition of his estate, not New Mexico statutes. The 

David Defendants asserted that in any event, Robert David was bona fide purchaser for 

value (BFP), and was protected from the minutiae of the statutory arguments because 

there was nothing in the records of Eddy County that gave notice of any interest Anne 

might have in the Lease. The David Defendants also argued that the Koch Plaintiffs 

were barred from asserting their claims on the basis of laches, waiver, and estoppel 

since they were aware of and approved the sale of the overriding royalty interest by 

Robert’s estate. 

{12} The Blume Defendants filed their own motion for summary judgment arguing 

primarily that Robert David was a BFP and that status protected him from any challenge 

to his acceptance of the assignment from Robert Koch’s estate. They also argued that 

the Koch Plaintiffs’ acceptance of the benefit of the sale of the royalty interest and their 

approval of the administration of the estate amounted to a ratification of the personal 

representative’s act in selling the interest. 

{13} In their briefing in response to the David Defendant’s arguments opposing 

summary judgment, the Koch Plaintiffs refined their arguments to assert that Robert 

David could not qualify as a BFP because there was enough in the BLM records and 

the Eddy County records to put him on both inquiry and actual notice of Anne’s interest 

in the Lease. In addition, they argued that even as a BFP, Robert David could not 

acquire any interest through a void assignment. The Koch Plaintiffs argued that the 

personal representative’s assignment was void both because the royalty interest was 

never in the estate, but also because Mr. Kumagai had no power as a Colorado 

personal representative to convey New Mexico real property unless an ancillary probate 

was opened in New Mexico. 

{14} After conducting a hearing on the motions, the district court entered an order 

granting the Koch Plaintiffs’ motion, though on grounds not argued by them. The district 

court’s order interpreted the divorce settlement agreement to divide Robert and Anne’s 

interest in the Lease “in a 5/8ths-3/8ths manner.” The order also concluded that the 

assignment of the royalty interest from the Colorado personal representative to Robert 

David was void because there was no ancillary probate undertaken in New Mexico, 

citing Allen v. Amoco Production Co., 1992-NMCA-054, 114 N.M. 18, 833 P.2d 1199. 

The district court decided that Robert David “was on actual notice, as a [BFP], that the 
assignment was taken from a [personal representative] who was only appointed in 

Colorado probate and who was not appointed as the [personal representative] in an 

ancillary probate in the state with proper jurisdiction.” The district court also concluded 

that Robert Koch’s 3/8ths interest in the Lease “remains parked in the estate of Robert 

Koch” and “[a]ll subsequent assignments are of no effect.” We note that these last two 

aspects of the district court’s ruling were not mentioned—much less requested or 

argued—by the parties below. 

DISCUSSION

{15} It is a commonplace observation that summary judgment is not favored in New 

Mexico. Woodhull v. Meinel, 2009-NMCA-015, ¶ 7, 145 N.M. 533, 202 P.3d 126. 

Summary judgment is appropriate only when there are no genuine issues of material 

fact and the facts in the record entitle the movant to judgment as a matter of law. Self v. 

United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. On 

appeal, this Court’s standard of review is de novo, examining the record in the light 

most favorable to support trial on the merits. Woodhull, 2009-NMCA-015, ¶ 7. The party 

requesting summary judgment must initially make a prima facie showing of entitlement 

to judgment. Freeman v. Fairchild, 2018-NMSC-023, ¶ 33, 416 P.3d 264. In order to 

determine whether a party has demonstrated an entitlement to judgment, we must look 

to the substantive law governing the dispute. Id.

{16} Applying these basic principles, we perceive at least two errors in the district 

court’s decision. First, there is nothing in the record supporting the decision that Robert 

David was on “actual” notice that Mr. Kumagai was only appointed in Colorado. The 

parties’ listings of undisputed facts did not mention Mr. David’s understanding of Mr. 

Kumagai’s status. The briefing below did not argue that Mr. David knew he was dealing 

with the Colorado probate proceeding only; nor did any party assert that Mr. David knew 

or appreciated—or should have known or appreciated—that an ancillary proceeding 

was needed and had not been established in New Mexico. The Koch Plaintiffs 

mentioned the lack of an ancillary probate in New Mexico in their reply brief in support 

of their motion for summary judgment, but the brief makes no assertion that Mr. David’s 

BFP argument was affected by that circumstance. The Koch Plaintiffs did not mention 

the one document in the record that might bear on the question: the assignment 

document conveying the interest to Mr. David. The document is not illuminating. It 

simply describes the assignor as the “Estate of Robert Koch, deceased, by Samuel 

Kumagai, Personal Representative.” It does not specify the jurisdiction or the court 

handling the probate case. Absent some other information in the record, we fail to see 

how the document could support the district court’s decision. Given the lack of 

evidentiary support in the record, the district court’s decision is simply speculative as a 

factual matter and unsupportable as a legal conclusion in the context of a summary 

judgment proceeding. 

{17} It is frankly difficult to see how Mr. David’s knowledge—or lack of knowledge—

about the absence of an ancillary proceeding would factor into a determination of his 

status as a BFP. One possibility is that such knowledge, coupled with a personal belief 
that the absence of an ancillary proceeding meant that the assignment was absolutely 

void—and thus fraudulent—would undermine the good faith aspect of BFP status. But, 

the record here is devoid of any indication or assertion that Mr. David or Mr. Kumagai 

were acting in bad faith or with fraudulent intent. 

{18} The second error we perceive in the district court’s decision is its interpretation 

and use of Allen, 1992-NMCA-054. The facts in Allen are superficially similar to this 

case, but there are crucial differences that limit the effect and meaning of its holding. 

Allen involved an internal family conflict over royalties and other payments from an oil 

and gas property owned by James Allen. Id. ¶¶ 2, 3. The income producing property 

was located in San Juan County in New Mexico. Id. ¶ 2. Mr. Allen died in Colorado and 

his will was probated in Colorado. Id. There was no ancillary proceeding started in New 

Mexico. Id. Mr. Allen’s will left his property to his relatives, including one of his sons—

Osborn Allen. Osborn was named executor of the will. Id. The will granted the executor 

the power to dispose of real property as necessary to settle the estate. Id. After he was 

appointed executor, Osborn and his wife—the plaintiff in the case—purchased the 

royalty interest, plus a related stream of income from the property, from the estate for 

themselves. Id. Osborn issued an executor’s deed to himself and his wife in July 1974. 

Id. Osborn died shortly after executing the deed to himself and his wife. Id.

{19} The opinion in Allen does not explain what prompted Osborn’s wife to file her 

quiet title action, though we can assume that it was prompted by the producing entity’s 

decision to stop paying royalties until a dispute about the rightful payees was 

determined by a court. Id. ¶ 1. The district court ruled in favor of the other heirs named 

in Mr. Allen’s will. Id. ¶ 2. On appeal, the plaintiff made clear that her theory for reversal 

on appeal was limited to the provision of the will granting the executor the power to sell 

properties. Id. ¶ 4. She did not rely on the Colorado probate appointment of Osborn as 

executor. Id. In addition, the plaintiff did not rely on the notion that the deed she 

received could be relied upon to provide color of title for purposes of an adverse 

possession action. Id. 

{20} The opinion in Allen makes no mention of any argument by the plaintiff that she 

should be considered a BFP as a way to avoid the problem caused by the invalid 

executor’s deed. It is, of course, obvious why she did not make a BFP-based argument: 

she could not claim to be an innocent third party purchaser given that she and Osborn 

engaged in self-dealing when they purchased the interests from the estate. Id. ¶ 2. 

{21} The factual and legal context of Allen limit its holding essentially to its facts. 

Because the plaintiff did not rely on BFP concepts, this Court appropriately did not 

consider whether the executor’s deed could effectively transfer title to a BFP even if it 

was an “invalid” instrument. That theory could only have been asserted by a third party 

assignee—such as Mr. David and his assignees in this case. New Mexico case law is 

clear that a “void” or voidable deed can serve to convey title to a BFP. See State ex rel. 

State Tax Comm’n v. Garcia, 1967-NMSC-098, ¶¶ 3, 4, 77 N.M. 703, 427 P.2d 230 

(discussing the difference between voidable and void instruments and holding that 

deeds not fraudulent on their face though cancellable by the state did not defeat a claim 
by a BFP); In re Last Will & Testament of Welch v. Welch, 2021-NMCA-028, ¶¶ 49-53, 

493 P.3d 400 (holding that a void heirship proceeding did not invalidate a conveyance 

to a BFP third party); Jeffers v. Doel, 1982-NMSC-116, ¶ 7, 99 N.M. 351, 658 P.2d 426 

(noting that NMSA 1978, § 14-9-3 (1923, amended 1990) protects BFPs even if a 

conveyance was void under NMSA 1978, § 40-3-13(A) (1975, amended 1993)). To the 

extent that the district court relied on Allen to mean that an invalid personal 

representative’s deed cannot convey anything that a BFP can rely on, it misread the 

case.

{22} In sum, the Koch Plaintiffs did not make a prima facie showing of entitlement to 

summary judgment. There are no facts in the record—disputed or undisputed—

supporting the district court’s finding and conclusion that Mr. David had “actual” 

knowledge about any aspect of the Koch estate proceeding. Thus, Mr. David’s status as 

a BFP is unresolved and cannot be resolved on the record before us. We thus reverse 

all aspects of the district court’s final judgment in favor of Plaintiffs Koch and Ryan 

flowing from its decision that Mr. David was not a BFP. We leave it to the parties to 

determine how they will litigate the issue of Mr. David’s BFP status on remand. On 

remand, the district court is free to resolve pending claims and pending or future 

motions in any appropriate legal manner that is not inconsistent with this opinion’s 

central determination that there are no undisputed material facts in the record at this 

time justifying a conclusion as a matter of law that Mr. David was not a BFP in this case. 

Because no one appealed from the district court’s judgment quieting title to a 1.875% 

overriding interest in the Lease in the Koch and Ryan Plaintiffs, we affirm that portion of 

the judgment.

CONCLUSION

{23} In accordance with our discussion above, we affirm in part, reverse in part, and 

remand for further proceedings in accordance with this opinion.

{24} IT IS SO ORDERED.

MICHAEL D. BUSTAMANTE, Judge,

retired, Sitting by designation.

WE CONCUR:

J. MILES HANISEE, Judge

JACQUELINE R. MEDINA, Judge